{"id":43427,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/indemnification-agreement-veritas-software-corp-seagate.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"indemnification-agreement-veritas-software-corp-seagate","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/indemnification-agreement-veritas-software-corp-seagate.html","title":{"rendered":"Indemnification Agreement &#8211; VERITAS Software Corp., Seagate Technology Inc. and Suez Acquisition Co. (Cayman) Ltd."},"content":{"rendered":"<pre>\n                            INDEMNIFICATION AGREEMENT\n\n        Indemnification Agreement, dated as of March 29, 2000, by and among\nVERITAS Software Corporation, a Delaware corporation ('Veritas'), Seagate\nTechnology, Inc., a Delaware corporation ('Seagate'), Suez Acquisition Company\n(Cayman) Limited, a limited company organized under the laws of the Cayman\nIslands ('SAC'), and each Person who executes a Joinder Agreement (as defined\nbelow) pursuant to Section 4(f) hereof.\n\n        WHEREAS, Seagate has determined to sell to SAC (the 'Stock Purchase')\nall of the outstanding shares of capital stock of the Sold Subsidiaries (as\ndefined below) pursuant to a Stock Purchase Agreement (the 'Stock Purchase\nAgreement') between Seagate and SAC, dated as of the date hereof;\n\n        WHEREAS, Seagate, Veritas and Victory Merger Sub, Inc., a Delaware\ncorporation and a wholly owned subsidiary of Veritas ('Victory Sub'), have\npreviously entered into an Agreement and Plan of Merger and Reorganization (the\n'Merger Agreement') dated as of the date hereof, providing for the merger of\nVictory Sub with and into Seagate (the 'Merger');\n\n        WHEREAS, consummation of the Stock Purchase is a condition precedent to\nthe consummation of the Merger;\n\n        WHEREAS, it is a condition precedent to the consummation of the Stock\nPurchase and the Merger that this Indemnification Agreement shall be in full\nforce and effect; and\n\n        WHEREAS, the parties to this Agreement have determined that it is\nnecessary and desirable to set forth certain agreements that will govern various\ntax matters, indemnity matters and other matters that may arise in connection\nwith the Stock Purchase and the Merger.\n\n        NOW, THEREFORE, in consideration of the premises and of the mutual\nagreements, provisions and covenants contained in this Agreement, and for other\ngood and valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, the parties agree as follows:\n\n        SECTION 1. Definitions. Capitalized terms used but not defined herein\nshall have the meanings ascribed thereto in the Stock Purchase Agreement. The\nfollowing terms shall have the following definitions:\n\n        'Financing Agreements' means the documents, instruments and agreements\nevidencing the Financing as the same may be amended, refinanced, replaced,\nmodified or supplemented from time to time.\n\n        'Loss' or 'Losses' means any losses, claims, damages, deficiencies,\nliabilities, costs obligations, fines, penalties and expenses of any nature\nwhatsoever (including reasonable expenses of investigation and reasonable\nattorney's fees and disbursements).\n\n\n                                      -1-\n\n\n        'Material Adverse Effect' means a material adverse change in or effect\nwith respect to the business, results of operations, properties, financial\ncondition or prospects of SAC and its Subsidiaries, taken as a whole.\n\n        'Person' means any individual, corporation, partnership, joint venture,\nlimited liability company, association or other business entity.\n\n        'Pre-Purchase Tax Period' means any Tax Period ending on or before the\nend of the date of the Stock Purchase.\n\n        'Pre-Purchase Taxes' shall mean (i) all liability for Taxes of Seagate\nand the Retained Subsidiaries for Pre-Purchase Tax Periods and (ii) all\nliability of Seagate and the Retained Subsidiaries for the Pre-Purchase portion\nof Taxes of such companies attributable to any Straddle Period as determined in\naccordance with Section 6(b) hereof, provided, however, that Taxes in respect of\nany transactions as of the date hereof undertaken at the written direction of\nVeritas shall be excluded.\n\n        'Retained Subsidiary' means any Subsidiary of Seagate that is not a Sold\nSubsidiary.\n\n        'SAC Indemnitor' means SAC and each Person who executes a Joinder\nAgreement pursuant to Section 4(f) hereof.\n\n        'Stock Purchase Date' shall mean the date of the Stock Purchase.\n\n        'Straddle Period' shall mean a taxable period of Seagate or a Retained\nSubsidiary that begins before the Stock Purchase Date and ends after the Stock\nPurchase Date.\n\n        'Tax' or 'Taxes' means (i) any tax, governmental fee or other like\nassessment or charge of any kind whatsoever (including, without limitation,\nwithholding on amounts paid to or by any Person), together with any interest,\npenalty, addition to tax or additional amount imposed by any governmental\nauthority (a 'Taxing Authority') responsible for the imposition of any such tax\n(domestic or foreign), (ii) liability for the payment of any amounts of the type\ndescribed in clause (i) above as a result of Seagate or any of its Subsidiaries,\nincluding the Sold Subsidiaries, being a member prior to the Stock Purchase Date\nof an affiliated, consolidated, combined or unitary group, or being a party to\nany agreement or arrangement entered into prior to the Stock Purchase Date as a\nresult of which liability of Seagate or any of its Subsidiaries, including the\nSold Subsidiaries, to a Taxing Authority is determined or taken into account\nwith reference to the liability of any other person, (iii) liability of Seagate\nor any of its Subsidiaries, including the Sold Subsidiaries, for the payment of\nany amount as a result of being party to any tax sharing agreement or\narrangement entered into prior to the Stock Purchase Date, or with respect to\nthe payment of any amount of the type described in clause (i) or (ii) above as a\nresult of any express or implied obligation arising prior to the Stock Purchase\nDate to indemnify any other Person and (iv) liability of Seagate or any of its\nSubsidiaries, including the Sold Subsidiaries, as a result of any express or\nimplied obligation arising prior to the Stock Purchase Date to pay any Taxes of\nany Person or to 'gross up' any Person for income received or deemed received as\na result of any other Person paying Tax Liabilities of such Person.\n\n                                      -2-\n\n\n\n        SECTION 2. Representations and Warranties of the SAC Indemnitors. The\nSAC Indemnitors jointly and severally represent and warrant to Veritas as of the\ndate hereof, as of the Closing Date and as of the date of each Joinder Agreement\nas follows, each of which such representations and warranties shall survive the\nClosing Date:\n\n        (a) Organization and Authority of the SAC Indemnitors. Each of the SAC\nIndemnitors is a corporation duly organized, validly existing and in good\nstanding under the laws of its jurisdiction of incorporation and has all\nnecessary corporate power and authority to enter into this Agreement, the Stock\nPurchase Agreement and each Joinder Agreement to which it is a party, to carry\nout its obligations hereunder and thereunder and to consummate the transactions\ncontemplated hereby and thereby. The execution and delivery of this Agreement\nand the Stock Purchase Agreement by SAC and each Joinder Agreement by each\nPerson who executes such Agreement, the performance by the SAC Indemnitors of\ntheir respective obligations hereunder and thereunder and the consummation by\nthe SAC Indemnitors of the transactions contemplated hereby and thereby have\nbeen duly authorized by all requisite corporate action on the part of the SAC\nIndemnitors. This Agreement and the Stock Purchase Agreement have been, and each\nJoinder Agreement will be, duly executed and delivered by the SAC Indemnitor\nparty thereto, and (assuming due authorization, execution and delivery by each\nof the other respective parties thereto) each of this Agreement, the Stock\nPurchase Agreement and each Joinder Agreement constitutes or, when executed and\ndelivered in accordance with the terms hereof, will constitute a legal, valid\nand binding obligation of the SAC Indemnitor Party thereto enforceable against\nthe SAC Indemnitor party thereto in accordance with its terms.\n\n        (b) No Conflict. The execution, delivery and performance of this\nAgreement and the Stock Purchase Agreement by SAC and each Joinder Agreement by\neach Person who executes such Agreement does not and will not after giving\neffect to the transactions contemplated by the Stock Purchase Agreement and the\nFinancing (i) violate, conflict with or result in the breach of any provision of\nthe charter or by-laws (or similar organizational documents) of any SAC\nIndemnitor, (ii) violate or conflict with any provision of law, or any order,\njudgment or decree of any court or other governmental or other regulatory\nauthority applicable to any SAC Indemnitor or (iii) violate, conflict with,\nresult in any breach of, constitute a default (or event which with the giving of\nnotice or lapse of time, or both, would constitute a default) under any material\ncontract, lease, loan agreement, mortgage, security agreement, trust indenture\nor other agreement or instrument to which any SAC Indemnitor is a party or by\nwhich any SAC Indemnitor is bound or to which any SAC Indemnitor's properties or\nassets is subject or (iv) result in the creation of any lien, charge or\nencumbrance of any kind whatsoever on any of the properties or assets of any SAC\nIndemnitor.\n\n        (c) Consents and Approvals. The execution, delivery and performance of\nthis Agreement and the Stock Purchase Agreement by SAC and each Joinder\nAgreement by each Person who executes such Agreement does not and will not\nrequire any material consent, approval, authorization, waiver or other order of,\naction by, filing with or notification to any governmental or regulatory\nauthority, domestic or foreign, except as will be made or obtained prior to\nClosing by the SAC Indemnitor party thereto and remains in full force and\neffect.\n\n\n                                      -3-\n\n\n        SECTION 3. Representations and Warranties of Veritas. Veritas represents\nand warrants to SAC as of the date hereof and as of the Closing Date as follows,\neach of which such representations and warranties shall survive the Closing\nDate:\n\n        (a) Organization and Authority of Veritas. Veritas is a corporation duly\norganized, validly existing and in good standing under the laws of its\njurisdiction of incorporation and has all necessary corporate power and\nauthority to enter into this Agreement and the Merger Agreement, to carry out\nits obligations hereunder and thereunder and to consummate the transactions\ncontemplated hereby and thereby. The execution and delivery of this Agreement\nand the Merger Agreement by Veritas, the performance by Veritas of its\nobligations hereunder and thereunder and the consummation by Veritas of the\ntransactions contemplated hereby and thereby have been duly authorized by all\nrequisite corporate action on the part of Veritas. This Agreement and the Merger\nAgreement have been duly executed and delivered by Veritas, and (assuming due\nauthorization, execution and delivery by each of the other respective parties\nhereto and thereto) this Agreement and the Merger Agreement constitute legal,\nvalid and binding obligations of Veritas enforceable against Veritas in\naccordance with their terms.\n\n        (b) No Conflict. The execution, delivery and performance of this\nAgreement and the Merger Agreement by Veritas does not and will not (i) violate,\nconflict with or result in the breach of any provision of the charter or by-laws\nof Veritas, (ii) violate or conflict with any provision of law, or any order,\njudgment or decree of any court or other governmental or other regulatory\nauthority applicable to Veritas or (iii) violate, conflict with, result in any\nbreach of, constitute a default (or event which with the giving of notice or\nlapse of time, or both, would constitute a default) under any material contract,\nlease, loan agreement, mortgage, security agreement, trust indenture or other\nagreement or instrument to which Veritas is a party or by which Veritas is bound\nor to which any of Veritas properties or assets is subject or (iv) result in the\ncreation of any lien, charge or encumbrance of any kind whatsoever on any of the\nproperties or assets of Veritas.\n\n        (c) Consents and Approvals. The execution, delivery and performance of\nthis Agreement and the Merger Agreement by Veritas does not and will not require\nany material consent, approval, authorization, waiver or other order of, action\nby, filing with or notification to any governmental or regulatory authority,\ndomestic or foreign, except as has been made or obtained prior to Closing by\nVeritas and remains in full force and effect.\n\n        SECTION 4.  Certain Covenants.\n\n        (a) Access to Books and Records of SAC; Financial Statements and\nReports. Upon the request of Veritas, SAC shall provide to representatives of\nVeritas and its Affiliates reasonable access to its books and records and shall\ncause its auditors to provide to the auditors of Veritas and its Affiliates\nreasonable access to SAC's auditors' work papers. For as long as SAC is required\nto do so, SAC shall provide Veritas with copies of any annual or quarterly\nfinancial statements and reports that it is required to deliver to the lenders\nproviding senior financing in the Financing, and any requests for waivers of any\nterm or provisions in the Financing Documents, in each case, at the same times\nprovided for in the Financing Agreements.\n\n                                      -4-\n\n\n\nThe provisions contained in this Section 4(a) shall terminate and be of no\nfurther effect from and after the fifth anniversary of the Stock Purchase Date.\n\n        (b) Retention of Documents. Subject to Section 6(f) hereof, each of the\nSAC Indemnitors agrees that it will preserve all documentation relating to the\ntransactions contemplated by the Stock Purchase Agreement or this Agreement and\neach of Veritas and Seagate agrees that it will preserve all documentation\nrelating to (i) Seagate, the Sold Subsidiaries, and the Retained Subsidiaries\nfor any Pre-Purchase Tax Period and any Straddle Period, and (ii) the Merger\nAgreement, Designated Assets and Designated Liabilities (other than\ndocumentation transferred to SAC pursuant to the terms of the Stock Purchase\nAgreement), in each case to the extent required by applicable law or by such\nparty's document retention policies, whichever is longer, as in effect from time\nto time. The provisions contained in this Section 4(b) shall terminate and be of\nno further effect from and after the eighth anniversary of the Stock Purchase\nDate.\n\n        (c) Notice of Certain Events. SAC shall promptly, but in no event more\nthan five business days after receiving notification or obtaining knowledge\nthereof, provide written notice to Veritas of any event which would have a\nMaterial Adverse Effect or materially impair the ability of any SAC Indemnitor\nto perform fully its obligations hereunder.\n\n        (d) Conduct of Business. Upon and after the Closing Date, SAC will\npreserve, renew and keep in full force and effect its corporate existence and\ntake all reasonable action to maintain all rights, privileges and franchises\nnecessary or desirable in the normal conduct of its business.\n\n        (e) Financing Agreements. Prior to the Closing, SAC shall furnish to\nVeritas true and complete copies of the Financing Agreements and, promptly\nfollowing any amendments thereto, true and complete copies of such amendments.\nThe provisions contained in this Section 4(e) shall terminate and be of no\nfurther effect from and after the fifth anniversary of the Stock Purchase Date.\n\n        (f) Joinder Agreements. On the Closing Date, SAC shall cause each of the\nSold Subsidiaries to execute and deliver to Veritas a Joinder Agreement in the\nform of Annex I hereto (a 'Joinder Agreement'). Thereafter, SAC shall cause any\nPerson that becomes a Subsidiary of SAC to, on the date such Person becomes a\nSubsidiary of SAC, execute and deliver to Veritas a Joinder Agreement. Any\nPerson executing a Joinder Agreement shall, upon executing the same, deliver to\nVeritas a certified copy of the charter and by-laws, or similar organizational\ndocuments, of such Person together with resolutions of the Board of Directors\n(or comparable governing body) of such Person approving the execution and\ndelivery of the Joinder Agreement.\n\n        SECTION 5. Indemnification. In addition to the obligations of the\nparties contained in Section 6 hereof, from and after the Closing Date:\n\n        (a) Each of the SAC Indemnitors jointly and severally agrees to\nindemnify, defend and hold harmless Veritas and Seagate and their respective\nAffiliates including the Retained Subsidiaries (the 'Veritas Indemnitees') from\nand against any and all Losses as they are incurred\n\n                                      -5-\n\n\nor suffered by any Veritas Indemnitee arising out of or in connection with or\nrelated to (but only to the extent arising out of or in connection with or\nrelated to):\n\n               (i) all Liabilities (other than Designated Liabilities and other\nthan in respect of Taxes, which are the subject of Section 6 hereof) arising out\nof or related to (A) the ownership, operations or conduct by Seagate and its\npredecessors or Affiliates (other than Veritas and its Subsidiaries) of their\nrespective businesses, properties, assets or liabilities on or prior to the\nClosing Date, or (B) the ownership, operations or conduct by SAC or any of its\nSubsidiaries of their respective businesses, properties, assets or liabilities\nfrom and after the Closing Date;\n\n               (ii) the enforcement by the Veritas Indemnitees of their\nrespective rights under this Agreement;\n\n               (iii) any breach by SAC of any agreement, obligation, covenant,\nrepresentation or warranty contained in this Agreement, the Stock Purchase\nAgreement or any agreement or document entered into in connection therewith or\ndelivered pursuant thereto to which SAC is a party.\n\n        (b) Veritas and Seagate agree to indemnify, defend and hold harmless SAC\nand each of its Subsidiaries from and against any and all Losses, as they are\nincurred or suffered by SAC or its Subsidiaries, arising out of or in connection\nwith or related to (but only to the extent arising out of or in connection with\nor related to):\n\n               (i) all Designated Liabilities;\n\n               (ii) all Liabilities of or related to the ownership, operations\nor conduct by Seagate or the Retained Subsidiaries of their respective\nbusinesses, properties, assets or liabilities subsequent to the Closing Date;\n\n               (iii) the enforcement by SAC and its Subsidiaries of their\nrespective rights under this Agreement; and\n\n               (iv) any breach by Veritas of any agreement, obligation,\ncovenant, representation or warranty contained in this Agreement, the Merger\nAgreement or any agreement or document entered into in connection therewith or\ndelivered pursuant thereto to which Veritas is a party.\n\n        SECTION 6. Taxes .\n\n        From and after the Closing Date:\n\n        (a) Each of the SAC Indemnitors jointly and severally agrees to\nindemnify and hold the Veritas Indemnitees harmless from all Losses (other than\nDesignated Liabilities) attributable to (i) Pre-Purchase Taxes of Seagate and\nthe Retained Subsidiaries, and (ii) Taxes, whenever arising, of the Sold\nSubsidiaries or attributable to assets transferred to the Sold Subsidiaries in\nconnection with the Stock Purchase and the Merger; provided, however, that the\nSAC\n\n                                      -6-\n\n\nIndemnitors shall not be obligated to indemnify the Veritas Indemnitees for any\nTaxes attributable to, or arising from, the transactions contemplated by the OD\nDocuments (as defined in the Stock Purchase Agreement), other than the Split and\nthe sale of shares of the capital stock of the Sold Subsidiaries (including any\ngain from any Section 338(h)(10) election made with respect to such sale).\n\n        (b) For purposes of determining whether Taxes are Pre-Purchase Taxes\ndescribed in clause 6(a)(i) above, in the case of a Straddle Period of Seagate\nor a Retained Subsidiary, the SAC Indemnitors shall be solely responsible for\nall Taxes attributable to the portion of the period ending on, and which\nincludes, the Stock Purchase Date, and Veritas shall be solely responsible for\nall Taxes attributable to the portion of the period which begins after the Stock\nPurchase Date. For purposes hereof, the portion of any Tax that is attributable\nto the portion of a Straddle Period up to and including the Stock Purchase Date\nshall be (i) in the case of a Tax that is not based on net income, gross income,\nsales or gross receipts (including real property taxes), the total amount of\nsuch Tax for the period in question multiplied by a fraction, the numerator of\nwhich is the number of days in the Straddle Period up to and including the Stock\nPurchase Date, and the denominator of which is the total number of days in such\nStraddle Period, and (ii) in the case of a Tax that is based on any of net\nincome, gross income, sales or gross receipts, the Tax that would be due with\nrespect to the portion of the Straddle Period through and including the Stock\nPurchase Date, if such portion of the Straddle Period were a separate taxable\nperiod, except that exemptions, allowances, deductions or credits that are\ncalculated on an annual basis (such as the deduction for depreciation or capital\nallowances) shall be apportioned on a per diem basis.\n\n        The Veritas Indemnitees shall indemnify and hold harmless the SAC\nIndemnitors from and against (i) any Taxes of Seagate for which the SAC\nIndemnitors are not obligated to indemnify the Veritas Indemnitees under Section\n6(a), and (ii) any Taxes arising out of or attributable to the breach of any\nrepresentation or covenant contained in this Indemnification Agreement by the\nVeritas Indemnitees.\n\n        With regard to any Loss for which indemnification is payable hereunder,\nsuch payment shall be treated for federal, state, local and foreign tax purposes\nas an adjustment to the Purchase Price in the Stock Purchase Agreement, unless\notherwise required under applicable law. The amount of any such payment shall be\nnet of any Tax on the Indemnified Party arising from such payment and shall be\nadjusted to take into account any net Tax benefit or net Tax detriment realized\nby the Indemnified Party that arises from the occurrence of the Loss for which\nsuch payment was made; provided that no payment shall be made by the SAC\nIndemnitors in respect of any Taxes payable by any Veritas Indemnitee in respect\nof an indemnification payment hereunder (the 'Gross-Up Amount') except if and to\nthe extent that the aggregate cumulative taxable income of the Veritas\nIndemnitees that would otherwise give rise to Gross-Up Amounts exceeds the\nAvailable Loss Amount (as reduced from time to time to the extent used to reduce\nPre-Purchase Taxes). The 'Available Loss Amount' shall mean an amount determined\nby the Closing Date or as soon as practicable thereafter by a Big Five\naccounting firm mutually selected by SAC and Veritas as being equal to the best\navailable estimate as of the date of determination of the excess of (x) the\naggregate losses of Seagate and its consolidated group arising on or before the\nStock Purchase Date or arising from the transactions contemplated by the Stock\n\n\n\n\n                                      -7-\n\n\n\nPurchase Agreement or Merger Agreement (but not taking into account any gain or\nincome recognized in respect of the Designated Assets in Parts A, B and C of\nSchedule II of the Merger Agreement), including the exercise of options in\nconnection with the Merger or the Stock Purchase Agreement, over (y) the amount\nof such losses as are estimated will be taken into account in determining the\nTRA Amount.\n\n        (c)(i) A draft of all Tax Returns relating to Seagate and the Retained\nSubsidiaries which are to be filed after the Stock Purchase Date, but which\nrelate to a Pre-Purchase Tax Period or Straddle Period, including the federal\nconsolidated income Tax Return of the affiliated group of which Seagate is the\ncommon parent for the period ending with the Merger, shall be prepared by Ernst\n&amp; Young or any other Big Five accounting firm (the 'Tax Return Preparer') chosen\nby SAC. Any such Tax Return shall be prepared in a manner consistent with past\npractice and without a change of any election or any accounting method. A copy\nof such draft shall be furnished to Veritas at least 30 days prior to the due\ndate for each such Tax Return for review and comment. Veritas shall be entitled\nto suggest such revisions to each such Tax Return as it, in its good faith\nbelief, considers appropriate to minimize the risk of an audit adjustment to\nsuch Tax Return, which suggestions shall be considered in good faith by SAC. If\nVeritas reasonably objects to any position taken in such draft Tax Return,\nSeagate shall amend such draft Tax Return to reflect an alternative position\nsuggested by Veritas, unless Seagate provides Veritas with an opinion from the\nTax Return Preparer that there is substantial authority (within the meaning of\nSection 6662 of the Code and applicable Treasury regulations) to support the\ninitial position. All other decisions regarding Tax Returns shall be made by\nSAC. Veritas shall execute and file such Tax Returns as so revised on a timely\nbasis and shall pay the Taxes shown due on such Tax Return. SAC will pay over to\nVeritas the amount of Taxes shown due at least five days prior to the date such\nTax Return is to be filed. SAC agrees that it shall be responsible for the\npreparation and filing of all Tax Returns of the Sold Subsidiaries and pay the\nTax shown due thereon.\n\n        (ii) The parties shall cooperate with each other in the preparation of\nany Tax Return and the conduct of any audit or other proceeding, judicial or\nadministrative (collectively, a 'Tax Proceeding'), involving Taxes of Seagate,\nthe Sold Subsidiaries and the Retained Subsidiaries. Veritas and SAC, without\ncharge, shall provide the requesting party with such assistance and documents as\nmay be reasonably requested by such party in connection with the preparation of\nany return or the conduct of any audit or other Tax Proceeding. Veritas and SAC\nagree to keep each other fully informed of all matters relating to any Tax\nReturn, or Tax Proceeding, including without limitation any settlement\nnegotiations in the event that such Tax Proceeding may involve Taxes for which\nan indemnity obligation may arise under this Section 6.\n\n        Notwithstanding anything else to the contrary in this Section 6, the\nobligations of the SAC Indemnitors pursuant to this Section 6 shall be\ncalculated by assuming no election has been made pursuant to Section 172(b)(3)\nof the Code, Treasury Regulation section 1.1502-21(b)(3), or any similar or\nsuccessor provision, to waive the carryback of losses arising from the exercise\nof options in connection to the Merger or the Stock Purchase or any losses\narising on or before the Stock Purchase Date and by assuming that all losses,\ncredits and other tax attributes are used in the order provided under the\napplicable provisions of the Code and Treasury Regulations.\n\n\n                                      -8-\n\n\n\n\n        (d)(i) If a claim in respect of Taxes (a 'Tax Claim') is made or\nthreatened by any Taxing Authority that, if successful, could result in an\nindemnity obligation under Section 6, Veritas shall promptly notify SAC, stating\nthe nature and basis of such claim and the amount thereof, to the extent known.\nFailure to give such notice shall not relieve the SAC Indemnitors from any\nliability that they may have on account of this indemnification or otherwise,\nexcept to the extent that the SAC Indemnitors are materially prejudiced in the\ndefense of such claim thereby. SAC will have the right, at its option, upon\ntimely notice to Veritas, to assume at its own expense control of any audit or\nother defense of such Tax Claim with its own counsel, and by assuming such\ncontrol will be deemed to have acknowledged its indemnification liability for\nsuch claim. SAC's right to control such a Tax Claim will be limited to issues in\nrespect of which amounts in dispute would be paid by the SAC Indemnitors or for\nwhich the SAC Indemnitors would be liable pursuant to Section 6. Costs of such\nTax Claims are to be borne by the SAC Indemnitors unless the Tax Claim relates\nto a Straddle Period.\n\n               (ii) In the case of any Tax Proceeding involving liability for\nTax of Seagate, a Retained Subsidiary or any Sold Subsidiary for which Seagate\nor a Retained Subsidiary could be liable if such Tax were unpaid (without regard\nto any indemnity obligation of SAC), (A) Veritas at its expense and through\ncounsel of its choosing, shall have the right to observe all hearings, trials\nand other proceedings, attend all settlement and other conferences and receive\ncopies of all material briefs and submissions and (B) notwithstanding the\ncontrol rights granted to SAC in clause (i) above, Veritas shall have the right\nto control the Tax Proceeding and make all decisions in respect thereof in the\ncase of any Tax proceeding involving the liability for Tax of Seagate or the\nRetained Subsidiaries if Veritas waives its right to obtain indemnity under this\nSection 6.\n\n        (e) If the parties disagree as to the amount of any payment to be made\nunder or on any other matter arising under this Section 6, the parties shall\nattempt in good faith to resolve such dispute, and any agreed-upon amount shall\nbe paid to the appropriate party. If such dispute is not resolved within 15 days\nfollowing written notice from any party hereto to an other party hereto that a\ndispute subject to this subsection (f) exists, then the parties shall jointly\nretain an independent accounting firm to resolve the dispute. If and to the\nextent that a dispute presents legal issues, the independent accounting firm\nshall have authority to consult an independent law firm. The fees of the\nindependent accounting firm and the independent law firm shall be borne by the\nparty that does not substantially prevail in the dispute; the independent\naccounting firm shall make a determination regarding liability for expenses. The\ndecision of such independent accounting firm and\/or the independent law firm\nshall be rendered within ten (10) days following final submissions by the\nparties to such firm and shall be final and binding on all parties; provided,\nhowever, that if there is a subsequent adjudication or other determination of a\nfact or matter assumed, but not decided in the decision of such accounting firm\nor law firm, the decision of such accounting firm or law firm shall be\nappropriately adjusted and the parties shall adjust the payments made\naccordingly. Following the decision of the independent accounting firm and\/or\nthe independent law firm, the parties shall each take or cause to be taken any\naction that is necessary or appropriate to implement such decision of the\nindependent accounting firm and\/or the independent law firm.\n\n                                      -9-\n\n\n        (f) Notwithstanding any other provision of this Agreement, Veritas, on\nthe one hand, and SAC, on the other hand, shall retain all Tax Returns,\nschedules and workpapers, and all material records or other documents relating\nthereto, until the later of (i) sixty (60) days following the expiration of the\nstatute of limitations (including extensions, waivers and mitigations thereof)\nof the taxable years to which such Tax Returns and other documents relate or\n(ii) one hundred twenty (120) days after the delivery of notice to the other\nparty to the effect that it shall dispose of such Tax Returns or other\ndocuments, unless it is requested by such party within one hundred twenty (120)\ndays of delivery of such notice (with which request it shall comply within\nthirty (30) days of receipt) that it transfer such Tax Returns or other\ndocuments to such other party. Any information obtained under this Section 6\nshall be kept confidential, except as may be otherwise necessary in connection\nwith the filing of Tax Returns or claims for refund or in conducting any audit\nor other proceeding.\n\n        SECTION 7. Termination of Tax Sharing Agreement. All tax sharing or\nsimilar agreements (if any) between Seagate and its Affiliates, on the one hand,\nand the Sold Subsidiaries, on the other, are terminated as of the Closing Date\nwithout any further liability to any party thereto and shall be of no further\nforce and effect. All claims for indemnification for Taxes between the parties\nshall be made and resolved in accordance with the terms of this Agreement.\n\n        SECTION 8.  [Reserved]\n\n        SECTION 9.  Indemnification Procedure.\n\n        (a) Except as may be otherwise provided pursuant to Section 6 hereof,\nany party entitled to indemnification hereunder (each, an 'Indemnified Party')\nshall, with respect to claims asserted against any such Indemnified Party by any\nthird party (a 'Third-Party Claim'), give written notice to the party against\nwhom indemnification is sought (the 'Indemnifying Party') of any liability which\nmight give rise to a claim for indemnity hereunder within thirty (30) days of\nthe receipt of any written claim or notice from any such third party, but no\nlater than twenty (20) days prior to the date any answer, responsive pleading or\nother response may be due with respect thereto, and with respect to any other\nmatter for which any Indemnified Party may seek indemnification hereunder, the\nIndemnified Party shall give prompt written notice to the Indemnifying Party of\nany liability which might give rise to a claim for indemnity; provided, however\nthat any failure to give such notice will not release the Indemnifying Party\nfrom its obligations hereunder except to the extent that the rights of the\nIndemnifying Party are materially prejudiced thereby.\n\n        (b) Except with respect to claims governed by Section 6 hereof which\nshall be governed by the provisions thereof, the Indemnifying Party, upon\nreceipt of such notice, shall be entitled to participate in or, at the\nIndemnifying Party's option, assume at its own expense the defense, appeal or\nsettlement of such Third-Party Claim with respect to which such indemnity has\nbeen invoked with counsel of its own choosing (who shall be reasonably\nsatisfactory to the Indemnified Party); provided, however, that if the\nIndemnifying Party assumes the defense, appeal or settlement of such Third-Party\nClaim, (i) the Indemnified Party shall be entitled to\n\n\n                                      -10-\n\n\nemploy one counsel to represent itself if an actual conflict of interest exists\nin the opinion of counsel to the Indemnified Party between the Indemnifying\nParty and the Indemnified Party in respect of such Third-Party Claim and in that\nevent and only in that event the reasonable fees and expenses of such counsel\nshall be paid by the Indemnifying Party (it being understood that all\nIndemnified Parties may employ not more than one counsel to represent them at\nthe expense of the Indemnifying Party) and (ii) the Indemnified Party shall\nnevertheless be entitled to participate in (but not direct) the defense thereof\nwith counsel of its own choice and, subject to clause (i) above, at its own\nexpense. Any Indemnified Party is hereby authorized prior to the date on which\nit receives written notice from the Indemnifying Party that it intends to assume\nthe defense, appeal or settlement of such Third-Party Claim, to file any motion,\nanswer or other pleading and take such other action which it shall reasonably\ndeem necessary to protect its interest or that of the Indemnifying Party until\nthe date on which the Indemnified Party receives such notice from the\nIndemnifying Party.\n\n        (c) No claim or demand may be settled by the Indemnified Party without\nthe consent of the Indemnifying Party, which consent shall not be unreasonably\ndelayed or withheld. Unless the claim or demand seeks only dollar damages (all\nof which are to be paid by the Indemnifying Party), no such claim or demand may\nbe settled by the Indemnifying Party without the consent of the Indemnified\nParty, which consent shall not be unreasonably delayed or withheld.\n\n        (d) The parties agree to cooperate in defending such Third-Party Claims\nand the Indemnified Party shall provide such cooperation and such access to its\nbooks, records and properties as the Indemnifying Party may reasonably request\nwith respect to any matter for which indemnification is sought hereunder, and\nthe parties hereto agree to cooperate with each other in order to insure the\nproper and adequate defense thereof.\n\n        (e) With regard to Third-Party Claims for which indemnification is\npayable hereunder, indemnification shall be paid by the Indemnifying Party\nwithin five (5) business days following the earlier to occur of:\n\n               (i) entry of a final non-appealable judgment by a court of\ncompetent jurisdiction or arbitration panel against an Indemnified Party which\nhas not been stayed pending appeal; or\n\n               (ii) a settlement of the claim, in accordance with the terms of\nsuch settlement.\n\n        With regard to any claim for Taxes subject to Section 6 hereof,\nindemnification shall be paid by the SAC Indemnitees within five (5) business\ndays following receipt by SAC of written notice from Veritas stating that any\namount subject to indemnification under such Section 6 has been paid by Veritas\nand the amount thereof and the indemnity payment requested.\n\n        With regard to any other claim for which indemnification is payable\nhereunder, indemnification shall be paid promptly by the Indemnifying Party upon\ndemand by the Indemnified Party but in any event within thirty (30) business\ndays following any such demand, provided that any such demand shall include a\nreasonably detailed description of the claims giving rise to such demand.\n\n\n                                      -11-\n\n\n        (f) The Indemnifying Parties agree to reimburse the Indemnified Parties\nfor any indemnifiable Losses under the provisions of this Agreement as such\nLosses are incurred, provided, however, that if it is finally determined that\nany Indemnified Party was not entitled to any amount paid as indemnity with\nrespect to such Losses, such Indemnified Party shall promptly refund all amounts\nto which such Indemnified Party was not entitled to the Indemnifying Parties\nthat paid such amounts.\n\n        SECTION 10. No Contribution. The Indemnifying Parties shall not be\nentitled to seek or obtain any contribution, reimbursement or other\nparticipation, direct or indirect, from any Indemnified Party in respect of any\npayment made or to be made by any Indemnifying Party hereunder or arising out of\nthis Agreement, notwithstanding the fact that the Loss for which any\nIndemnifying Party is liable results from or is contributed to by any breach by\nany Indemnified Party or any misrepresentation by any Indemnified Party\ncontained in the Merger Agreement, the Stock Purchase Agreement, this Agreement\nor any agreement, document, instrument or schedule referred to herein or therein\nor contemplated hereby or thereby.\n\n        SECTION 11. Validity. The invalidity or unenforceability of any\nprovision of this Agreement shall not affect the validity or enforceability of\nany other provision of this Agreement, which shall remain in full force and\neffect; provided, however that if any mutual covenant contained herein is\ndeclared invalid or unenforceable with respect to Veritas and its Affiliates\n(including Seagate and any Retained Subsidiary following the Closing), on the\none hand, or SAC and its Affiliates, on the other hand, by any court of\ncompetent jurisdiction or governmental authority, such mutual covenant shall\nbecome invalid or unenforceable with respect to the opposite group to such\ncovenant and provided further, that this Section 11 shall not be construed to\naffect any other rights of any party hereto under applicable principles of\ncontract law, including without limitation the principles of failure of\nconsideration and mutual dependency.\n\n        SECTION 12. Notices. All notices, requests, claims, demands and other\ncommunications hereunder shall be in writing and shall be deemed to have been\nduly given when delivered in person, by verified telecopy, by expedited delivery\nservice (such as Federal Express) or by registered or certified mail (postage\nprepaid, return receipt requested) to the respective parties as follows:\n\n                      (i)    if to Veritas (and, after Closing, Seagate), to:\n\n                             VERITAS Software Corporation\n                             1600 Plymouth Street\n                             Mountain View, California  94043\n                             Attention: General Counsel\n                             Facsimile: 650-526-2581\n                             Telephone: 650-335-8000\n\n\n                                      -12-\n\n\n                       with a copy to:\n\n                             Willkie Farr &amp; Gallagher\n                             787 Seventh Avenue\n                             New York, NY  10019\n                             Attention: Michael A. Schwartz, Esq.\n                             Facsimile: 212-728-8111\n                             Telephone: 212-728-8000\n\n                      (ii)   if to Seagate (prior to Closing), to:\n\n                             Seagate Technology, Inc.\n                             920 Disc Drive\n                             P.O. Box 66360\n                             Scotts Valley, California 95067\n                             Attention: General Counsel\n                             Facsimile: 831-438-6675\n                             Telephone: 831-439-5370\n\n                      with a copy to:\n\n                             Wilson Sonsini Goodrich &amp; Rosati\n                             Professional Corporation\n                             650 Page Mill Road\n                             Palo Alto, California 94304-1050\n                             Attention: Larry W. Sonsini, Esq.\n\n                             and to:\n\n                             Wilson Sonsini Goodrich &amp; Rosati\n                             Professional Corporation\n                             One Market Street\n                             Spear Tower, Suite 3300\n                             San Francisco, California  94105\n                             Attention: Michael J. Kennedy, Esq.\n                             Facsimile: 415-947-2099\n                             Telephone: 415-947-2000\n\n\n                      (iii)  if to SAC, to:\n\n                             Suez Acquisition Company (Cayman) Limited\n                             c\/o Silver Lake Partners, L.P.\n                             2725 Sand Hill Road\n                             Building C, Suite 950\n\n                                      -13-\n\n\n                             Attention: Dave Roux\n                             Facsimile: 650-2338125\n                             Telephone: 650-233-8121\n\n                      with a copy to:\n\n                             Simpson Thacher &amp; Bartlett\n                             425 Lexington Avenue\n                             New York, New York  10017-3954\n                             Attention: William Curbow, Esq.\n                             Facsimile: 212-455-2502\n                             Telephone: 212-455-2000\n\n                      and to:\n\n                             TPG Partners III, L.P.\n                             201 Main Street, Suite 2420\n                             Fort Worth, Texas  76102\n                             Attention: Richard A. Ekleberry, Esq.\n                             Facsimile: 817-871-4010\n                             Telephone: 817-871-4000\n\n                             with a copy to:\n\n                             Cleary, Gottlieb, Steen &amp; Hamilton\n                             One Liberty Plaza\n                             New York, New York  10006\n                             Attention: Paul J. Shim, Esq.\n                             Facsimile: 212-225-3999\n                             Telephone: 212-225-2000\n\nSuch notice shall be effective on the day following receipt of delivery in\nperson, by verified telecopy or by expedited delivery service and shall be\neffective four days after mailing in accordance with the foregoing. The person\nto whom notice is to be given, and any address, may be changed from time to time\nin the manner set forth above (provided that any such change shall be effective\nonly upon receipt thereof).\n\n\n                                      -14-\n\n\n        SECTION 13. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of New York, regardless of\nthe laws that might otherwise govern under applicable principles of conflicts of\nlaws thereof. Venue for any legal action under this Agreement shall be in the\nfederal or state courts located in the State and County of New York, All parties\nhereunder hereto hereby submit themselves to the jurisdiction of such courts for\nthe purpose of this Agreement and hereby waive trial by jury in any action,\ncounterclaim or proceeding of any kind arising under or out of or in connection\nwith this Agreement, the negotiations leading thereto, the inducements to the\nparties to enter into this Agreement and to the transactions it contemplates.\n\n        SECTION 14. Descriptive Headings. The descriptive headings herein are\ninserted for convenience of reference only and are not intended to be part of or\nto affect the meaning or interpretation of this Agreement.\n\n        SECTION 15. Parties-in-Interest. This Agreement shall be binding upon\nand inure solely to the benefit of each party hereto, and nothing in this\nAgreement, express or implied, is intended to confer upon any other person any\nrights, benefits or remedies of any nature whatsoever under or by reason of this\nAgreement.\n\n        SECTION 16. Counterparts. This Agreement may be executed in two\ncounterparts, each of which shall be deemed to be an original, but both of which\nshall constitute one and the same agreement, provided that at least one\ncounterpart is executed by each party herein named.\n\n        SECTION 17. Successors. All agreements of the parties in this Agreement\nshall bind their respective successors, provided that upon written request by\nSAC following the sale of any of its Subsidiaries to an unaffiliated third\nparty, Veritas shall execute and deliver a release of such Subsidiary of its\nobligations hereunder.\n\n        SECTION 18. Assignment. This Agreement is not assignable by either party\nhereto without the prior written consent of the other party hereto.\n\n                                      -15-\n\n\n\n        IN WITNESS WHEREOF, each of the parties has caused this Agreement to be\nexecuted on its behalf by its officers thereunto duly authorized, all as of the\nday and year first above mentioned.\n\nVERITAS SOFTWARE CORPORATION\n\nBy:\n   -------------------------------------------\nIts:\n    ------------------------------------------\n\n\nSEAGATE TECHNOLOGY, INC.\n\nBy:\n   -------------------------------------------\nIts:\n    ------------------------------------------\n\n\n\nSUEZ ACQUISITION COMPANY (CAYMAN) LIMITED\n\nBy:\n   -------------------------------------------\nIts:\n    ------------------------------------------\n\n                                      -16-\n\n\n\n                                                                         ANNEX I\n\n                               JOINDER AGREEMENT\n\n               Joinder Agreement, dated as of this day of ___________ _____, by\nand among VERITAS Software Corporation, a Delaware corporation ('Veritas'),\nSeagate Technology, Inc., a Delaware Corporation ('Seagate'), and the\nundersigned (an 'SAC Indemnitor').\n\n               Reference is made to that certain Indemnification Agreement (the\n'Indemnification Agreement'), dated as of March __, 2000, by and among Veritas,\nSeagate, Suez Acquisition Company (Cayman) Limited, a limited company organized\nunder the laws of the Cayman Islands ('SAC'), and the Subsidiaries of SAC from\ntime to time party thereto, as the same may from time to time be amended.\nCapitalized terms used but not otherwise defined herein shall have the meanings\nascribed thereto in the Indemnification Agreement.\n\n               By executing this Joinder Agreement, the SAC Indemnitor hereby\nagrees to be bound by the terms of the Indemnity Agreement as if it was an\noriginal signatory to such Agreement and shall be deemed to be a SAC Indemnitor\nthereunder.\n\n               IN WITNESS WHEREOF, the parties hereto have executed this Joinder\nAgreement as of the date first above written.\n\n                                                   [SAC INDEMNITOR]\n\n\n                                                   -----------------------------\n                                                   Name:\n\n\nAgreed to and Accepted by:\n\nVERITAS SOFTWARE CORPORATION\n\n\n\n-----------------------------\nName:\nTitle:\n\nSEAGATE TECHNOLOGY, INC.\n\n\n\n-----------------------------\nName:\nTitle:\n\n\n                                      -1-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8793,9244],"corporate_contracts_industries":[9508,9513],"corporate_contracts_types":[9622,9626],"class_list":["post-43427","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-seagate-technology-inc","corporate_contracts_companies-veritas-software-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_industries-technology__software","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43427","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=43427"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43427"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43427"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43427"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}