<\/p>\n 7.1 Employee Liabilities…………………………………………………….34
\n 7.2 Employee Benefit Plans…………………………………………………..34
\n 7.3 WARN Act……………………………………………………………….35<\/p>\n
ARTICLE VIII TAX MATTERS………………………………………………………………35<\/p>\n
8.1 Conveyance Taxes………………………………………………………..35
\n 8.2 Section 338(h)(10) Election………………………………………………35
\n 8.3 Tax Matters Schedule. Prior to the Closing Date, Seller shall promptly
\n take all actions set forth in Schedule VI hereto with respect to the
\n transactions described herein…………………………………………….36<\/p>\n
ARTICLE IX CONDITIONS TO CLOSING……………………………………………………….36<\/p>\n
9.1 Conditions to Obligations of Each Party to Effect the Closing………………..36
\n 9.2 Additional Conditions to Obligations of Seller……………………………..37
\n 9.3 Additional Conditions to the Obligations of Purchaser……………………….37<\/p>\n
ARTICLE X TERMINATION, AMENDMENT AND WAIVER……………………………………………..38<\/p>\n
10.1 Termination…………………………………………………………….38
\n 10.2 Notice of Termination; Effect of Termination……………………………….40
\n 10.3 Fees and Expenses……………………………………………………….40
\n 10.4 Amendment………………………………………………………………42
\n 10.5 Extension; Waiver……………………………………………………….42<\/p>\n
ARTICLE XI INDEMNIFICATION…………………………………………………………….42<\/p>\n
11.1 Survival……………………………………………………………….42
\n 11.2 Indemnification…………………………………………………………42<\/p>\n
ARTICLE XII GENERAL PROVISIONS…………………………………………………………42<\/p>\n
12.1 Notices………………………………………………………………..42
\n 12.2 Interpretation………………………………………………………….44
\n 12.3 Counterparts……………………………………………………………45
\n 12.4 Entire Agreement………………………………………………………..45
\n 12.5 Severability……………………………………………………………45
\n 12.6 Other Remedies; Specific Performance………………………………………45
\n 12.7 Governing Law…………………………………………………………..45
\n 12.8 Rules of Construction……………………………………………………45
\n 12.9 Assignment……………………………………………………………..45
\n 12.10 WAIVER OF JURY TRIAL…………………………………………………….46
\n 12.11 No Third Party Rights……………………………………………………46
\n 12.12 Attorneys’ Fees…………………………………………………………46
\n<\/c><\/s><\/caption>\n<\/table>\n
-iii-
\n 5<\/p>\n
STOCK PURCHASE AGREEMENT<\/p>\n
THIS STOCK PURCHASE AGREEMENT (this “AGREEMENT”) is made and entered
\ninto as of March 29, 2000 by and among Suez Acquisition Company (Cayman)
\nLimited, a limited company organized under the laws of the Cayman Islands
\n(“PURCHASER”), Seagate Technology, Inc., a Delaware corporation (“SELLER”), and
\nSeagate Software Holdings, Inc., a Delaware corporation (“SSHI”).<\/p>\n
RECITALS:<\/p>\n
A. Seller owns beneficially all of the issued and outstanding shares
\n(collectively, the “SHARES”) of capital stock of each Sold Subsidiary (as
\ndefined herein).<\/p>\n
B. Seller and SSHI wish to sell to Purchaser, and Purchaser wishes to
\npurchase from Seller and SSHI, the Shares, upon the terms and subject to the
\nconditions set forth herein.<\/p>\n
C. Seller and Purchaser desire to make certain representations and
\nwarranties, and mutual covenants and agreements in connection with the
\ntransactions contemplated hereby.<\/p>\n
D. Simultaneously and in connection with entering into this Agreement,
\nSeller is entering into the VERITAS Merger Agreement (as defined below) with
\nVERITAS (as defined below).<\/p>\n
NOW, THEREFORE, in consideration of the foregoing premises, and the
\ncovenants, promises and representations set forth herein, and for other good and
\nvaluable consideration, the receipt and sufficiency of which is hereby
\nacknowledged and accepted, the parties hereto hereby agree as follows:<\/p>\n
ARTICLE I
\n DEFINITIONS<\/p>\n
1.1 Certain Defined Terms. For all purposes of and under this Agreement,
\nthe following terms shall have the following respective meanings:<\/p>\n
(a) “ACTION” means any claim, action, suit, arbitration, inquiry,
\nproceeding or investigation by or before any Governmental Authority.<\/p>\n
(b) “ADJUSTMENT AMOUNT” means, to the extent not paid or
\ndischarged on or prior to the Closing Date, the sum of (i) accrued and unpaid
\nTaxes of Seller and its Subsidiaries (including the Sold Subsidiaries)
\ndetermined in accordance with the principles arrived at in determining the
\nFebruary 28, 2000 balance sheet of Seller (i.e., $278,000,000 minus Taxes
\nreflected in such amount to the extent paid or settled since such date, plus
\nadditions to such amount in respect of items identified or arising since such
\ndate, plus an amount equal to 40% of the aggregate income of Seller and its
\nSubsidiaries since such date) excluding Taxes caused by or relating to the Split
\nand including, without limitation, any Taxes payable by virtue of the
\ntransactions contemplated hereby and any U.S. alternative minimum tax for which
\nSeller or any of its Subsidiaries may be liable arising out of or attributable
\nto the 1999 reorganization of
\n 6<\/p>\n
Seagate Software Information Management Group (Canada), Inc. (the “CANADIAN
\nREORGANIZATION”), (ii) Indebtedness of Seller and its Subsidiaries (including
\nany interest thereon and any premium payable in connection with the retirement
\nthereof), (iii) the Overage Amount, if any, (iv) the Bonus Amount, and (v) any
\nTransaction Expenses.<\/p>\n
(c) “AFFILIATE” means, with respect to any specified Person, any
\nother Person that directly, or indirectly through one or more intermediaries,
\ncontrols, is controlled by, or is under common control with, such specified
\nPerson.<\/p>\n
(d) “BONUS AMOUNT” means the aggregate amount of year-end bonuses
\nand profit sharing payments required to be paid by Seller and its Subsidiaries
\nin July of 2000.<\/p>\n
(e) “CASH” means cash, cash equivalents and short-term
\ninvestments (including all securities available for sale) as determined in
\naccordance with GAAP and consistent with the determination thereof in the Recent
\nSEC Reports (as defined in Section 3.8(a) hereof).<\/p>\n
(f) “CODE” means the Internal Revenue Code of 1986, as amended,
\nor any successor statute thereto.<\/p>\n
(g) “COMMITMENT LETTERS” means the debt commitment letter
\nattached as Schedule I hereto.<\/p>\n
(h) “CONTROL” (including the correlative terms “CONTROLLED BY”
\nand “UNDER COMMON CONTROL WITH”), with respect to the relationship between or
\namong two or more persons, means the possession, directly or indirectly or as
\ntrustee or executor, of the power to direct or cause the direction of the
\naffairs or management of a person, whether through the ownership of voting
\nsecurities, as trustee or executor, by contract or otherwise, including, without
\nlimitation, the ownership, directly or indirectly, of securities having the
\npower to elect a majority of the board of directors or similar body governing
\nthe affairs of such person.<\/p>\n
(i) “DELAWARE LAW” means the General Corporation Law of the State
\nof Delaware, as amended, or any successor statute thereto.<\/p>\n
(j) “DESIGNATED ASSETS” means the securities set forth on
\nSchedule II hereto.<\/p>\n
(k) “DESIGNATED LIABILITIES” means all Liabilities (including
\nwith respect to Taxes) of Seller and its Subsidiaries relating to (i) the
\nDesignated Assets, (ii) transactions pursuant to the OD Documents, (iii)
\nobligations to VERITAS (indemnification or otherwise) in respect of the software
\nbusiness sold to VERITAS in exchange for shares of VERITAS common stock, (iv)
\nany Non-Assumed Plan (as defined in Section 7.1 hereof), and (v) Seller’s stock
\npurchase plan. Without expanding the definition of Designated Liabilities,
\nDesignated Liabilities shall not include Liabilities relating to the
\ntransactions contemplated by this Agreement or any Liabilities included in the
\nAdjustment Amount.<\/p>\n
(l) “DOJ” means the United States Department of Justice, or any
\nsuccessor agency thereto.<\/p>\n
(m) “EQUITY COMMITMENTS” means the equity commitment letters
\nattached as Schedule III hereto.<\/p>\n
-2-
\n 7<\/p>\n
(n) “ERISA” means the Employee Retirement Income Security Act of
\n1974, as amended, or any successor statute thereto.<\/p>\n
(o) “EXCHANGE ACT” means the Securities Exchange Act of 1934, as
\namended, or any successor statute thereto.<\/p>\n
(p) “FTC” means the United States Federal Trade Commission, or
\nany successor agency thereto.<\/p>\n
(q) “GAAP” means United States generally accepted accounting
\nprinciples.<\/p>\n
(r) “GOVERNMENTAL AUTHORITY” or “GOVERNMENTAL AUTHORITIES” means
\nany United States federal, state or local or any foreign government,
\ngovernmental, regulatory or administrative authority, agency or commission or
\nany court, tribunal, or judicial or arbitral body.<\/p>\n
(s) “GOVERNMENTAL ORDER” means any order, writ, judgment,
\ninjunction, decree, stipulation, determination or award entered by or with any
\nGovernmental Authority.<\/p>\n
(t) “HSR ACT” means the Hart-Scott-Rodino Antitrust Improvements
\nAct of 1976, as amended, and any successor statute thereto.<\/p>\n
(u) “INDEBTEDNESS” means, with respect to any person, (i) all
\nindebtedness of such person, whether or not contingent, for borrowed money, (ii)
\nall obligations of such person evidenced by notes, bonds, debentures or other
\nsimilar instruments, (iii) all obligations, contingent or otherwise, of such
\nperson under acceptance, letter of credit or similar facilities, and (iv) all
\nIndebtedness of others referred to in clauses (i) through (iii) above,
\ninclusive, guaranteed directly or indirectly in any manner by such person
\n(excluding guarantees of collection), or in effect guaranteed directly or
\nindirectly by such person, including by way of an agreement (A) to pay or
\npurchase such Indebtedness or to advance or supply funds for the payment or
\npurchase of such Indebtedness, (B) to purchase, sell or lease (as lessee or
\nlessor) property, or to purchase or sell services, primarily for the purpose of
\nenabling the debtor to make payment of such Indebtedness or to assure the holder
\nof such Indebtedness against loss, (C) to supply funds to or in any other manner
\ninvest in the debtor (including any agreement to pay for property or services
\nirrespective of whether such property is received or such services are
\nrendered), or (D) otherwise to assure a creditor against loss.<\/p>\n
(v) “INDENTURE” means the Indenture dated as of March 1, 1997
\nbetween Seller and First Trust of California, National Association, pursuant to
\nwhich the Debentures (as defined in Section 3.4(b) hereof) have been issued.<\/p>\n
(w) “IRS” means the United States Internal Revenue Service, or
\nany successor agency thereto.<\/p>\n
(x) “KNOWLEDGE” (or any word or phrase of similar import) means,
\nwith respect to any matter in question, the knowledge of the executive officers
\nor directors of the person in question and its Subsidiaries.<\/p>\n
-3-
\n 8<\/p>\n
(y) “LAW” or “LAWS” means any federal, state, local or foreign
\nstatute, law, ordinance, regulation, rule, code, order, judgment, decree or
\nother requirement or rule of law.<\/p>\n
(z) “LIABILITY” or “LIABILITIES” means any and all debts,
\nliabilities and obligations of any type or nature whatsoever, whether accrued or
\nfixed, absolute or contingent, matured or unmatured or determined or
\ndeterminable, including, without limitation, those arising under any Law
\n(including, without limitation, any Environmental Law), Action or Governmental
\nOrder and those arising under any contract, agreement, arrangement, commitment
\nor undertaking.<\/p>\n
(aa) “LIEN” means any lien, security interest, adverse claim,
\ncharge, mortgage or other encumbrance.<\/p>\n
(bb) “MATERIAL ADVERSE EFFECT” means any change in, or effect on
\nSeller or any of its Subsidiaries that, individually or in the aggregate with
\nany other circumstances, changes in, or effects on, Seller or any of its
\nSubsidiaries is materially adverse to the operations or Liabilities, financial
\ncondition or results of operations of the Sold Subsidiaries and their respective
\nSubsidiaries, taken as a whole (after giving effect to the Split), excluding (i)
\nany change in or effect on Seller or any of its Subsidiaries that is related to
\ncompliance by Seller or its Subsidiaries with the terms of this Agreement, and
\n(ii) any Liability which results in an increase in the Required Cash pursuant to
\nSection 2.6 hereof or which is a Designated Liability.<\/p>\n
(cc) “OD DOCUMENTS” means the Agreement and Plan of Merger and
\nReorganization, dated as of March 29, 2000, by and among Seller and VERITAS
\nSoftware Corporation, a Delaware corporation (“VERITAS”), as the same may be
\namended, supplemented and modified from time to time in accordance with its
\nterms (the “VERITAS MERGER AGREEMENT”).<\/p>\n
(dd) “OVERAGE AMOUNT” means any “excess parachute payments”
\nwithin the meaning of Section 280G of the Code payable as a result of the
\nacceleration of Star Options (as defined in the VERITAS Merger Agreement)
\npursuant to the OD Documents in excess of $100,000,000.<\/p>\n
(ee) “REQUIRED CASH” means $800,000,000, as adjusted pursuant to
\nSection 2.6 hereof.<\/p>\n
(ff) “ROLL AGREEMENT” means the Rollover Commitment Agreements
\npreviously delivered to the parties hereto.<\/p>\n
(gg) “ROLLED OPTION VALUE” means the aggregate Rollover Value (as
\ndefined in the Roll Agreement).<\/p>\n
(hh) “SEC” means the United States Securities and Exchange
\nCommission, or any successor agency thereto.<\/p>\n
(ii) “SECURITIES ACT” means the Securities Act of 1933, as
\namended, or any successor statute thereto.<\/p>\n
-4-
\n 9<\/p>\n
(jj) “SPLIT” means the transfer to the Sold Subsidiaries, prior
\nto the Closing Date, of all assets (including, without limitation, the
\nsecurities of iCompression, TurboLinux and MetaByte currently held by Seller
\n(the “PRIVATE SECURITIES”) or the Cash or other proceeds realized by Seller from
\nthe sale, disposition or transfer of such Private Securities) (and such Cash or
\nother proceeds shall be in addition to any Required Cash) and Liabilities of
\nSeller and Seagate Software Holdings, Inc., other than the Designated Assets and
\nthe Designated Liabilities, to be transferred pursuant to an agreement in a form
\nconsistent with the terms hereof to be agreed upon by Seller and Purchaser prior
\nto Closing and reasonably satisfactory to VERITAS.<\/p>\n
(kk) “SUBSIDIARY” or “SUBSIDIARIES” means any and all
\ncorporations, limited liability companies, general or limited partnerships,
\njoint ventures, business trusts, associations and other business enterprises and
\nentities controlled by a person directly or indirectly through one or more
\nintermediaries.<\/p>\n
(ll) “TA STATEMENT” means an estimate of the Adjustment Amount by
\nthe Chief Financial Officer of Seller to be prepared in collaboration with
\nPurchaser based on Seller’s month-end immediately preceding delivery of such
\nestimate together with a certificate of the Chief Financial Officer of Seller
\nspecifying (i) that the TA Statement fairly presents his or her good faith best
\neffort estimate of the Adjustment Amount as at the then scheduled Closing Date
\nand (ii) the assumed VERITAS Price utilized therein for the purposes of
\ncalculating any Overage Amount.<\/p>\n
(mm) “TAX” or “TAXES” shall mean any and all federal, state,
\nlocal and foreign taxes, assessments and other governmental charges, duties,
\nimpositions and Liabilities relating to taxes, including, without limitation,
\ntaxes based upon or measured by gross receipts, income, profits, sales, use and
\noccupation, and value added, ad valorem, transfer, franchise, withholding,
\npayroll, recapture, employment, excise and property taxes, together with all
\ninterest, penalties and additions imposed with respect to such amounts and any
\nobligations under any agreements or arrangements with any other person with
\nrespect to such amounts, and any Liability for taxes of a predecessor entity (if
\nany).<\/p>\n
(nn) “TRANSACTION EXPENSES” means the fees and expenses of
\nSeller’s or its Subsidiaries’ investment bankers, attorneys, consultants,
\naccountants and advisors incurred in connection with this Agreement, the OD
\nDocuments and the transactions contemplated hereby and thereby.<\/p>\n
(oo) “VERITAS PRICE” means the closing price for a share of
\nVERITAS Common Stock, as reported on the Nasdaq National Market.<\/p>\n
ARTICLE II
\n PURCHASE AND SALE<\/p>\n
2.1 Purchase and Sale of the Shares. Upon the terms and subject to the
\nconditions of this Agreement, at the Closing (as defined in Section 2.3 hereof),
\n(i) Seagate Technology, Inc. shall sell to Purchaser or one of its Designees (as
\ndefined in Section 12.10 hereof), and Purchaser shall, or shall cause one of its
\nDesignees to, purchase from Seller, all of the outstanding capital stock of each
\nof the Subsidiaries of Seller listed on Schedule IV hereto, and (ii) SSHI shall
\nsell to<\/p>\n
-5-
\n 10<\/p>\n
Purchaser or one of its Designees, and Purchaser shall, or shall cause one of
\nits Designees to, purchase from SSHI, all of the outstanding capital stock of
\nSeagate Software Information Management Group, Inc., a Delaware corporation
\n(“SSIMG”) (such Subsidiaries set forth on Schedule IV and SSIMG being referred
\nto herein, collectively, as the “SOLD SUBSIDIARIES”), in exchange for payment of
\nthe “Purchase Price” set forth in Section 2.2 hereof.<\/p>\n
2.2 Purchase Price; Allocation of Purchase Price. The aggregate purchase
\nprice for the Shares shall be $2,000,000,000 in cash, minus the Rolled Option
\nValue (the “PURCHASE PRICE”), plus the assumption of all Liabilities (other than
\nthe Designated Liabilities) of Seller and SSHI.<\/p>\n
2.3 Closing. Upon the terms and subject to the conditions of this
\nAgreement, the sale and purchase of the Shares contemplated by this Agreement
\nshall take place at a closing (the “CLOSING”) to be held at the offices of
\nWilson Sonsini Goodrich & Rosati, Professional Corporation, located at One
\nMarket Street, Spear Tower, Suite 1600, San Francisco, California 94105, at a
\ntime and date to be specified by the parties hereto, which shall be no later
\nthan second (2nd) business day following the satisfaction or, if permitted
\npursuant hereto, waiver of the conditions set forth in Article IX hereof, or at
\nsuch other location, date and time as Purchaser and Seller shall mutually agree.
\nThe date upon which the Closing actually occurs shall be referred to herein as
\nthe “CLOSING DATE.”<\/p>\n
2.4 Closing Deliveries by Seller and SSHI. At the Closing, Seller or
\nSSHI (as applicable) shall deliver, or cause to be delivered, to Purchaser
\nand\/or its Designees, as appropriate, the following:<\/p>\n
(a) stock certificates evidencing the Shares, duly endorsed in
\nblank or accompanied by stock powers duly executed in blank, and with all
\nrequired stock transfer tax stamps affixed thereto, representing all of the
\nissued and outstanding shares of capital stock of each of the Sold Subsidiaries,
\nfree and clear of all Liens;<\/p>\n
(b) a receipt for the Purchase Price; and<\/p>\n
(c) the certificates and other documents required to be delivered
\nas a condition to the Closing pursuant to Section 9.3 hereof.<\/p>\n
2.5 Closing Deliveries by Purchaser. At the Closing, Purchaser shall
\ndeliver, or cause to be delivered, to Seller the following:<\/p>\n
(a) cash in an amount equal to the Purchase Price, by wire
\ntransfer in immediately available funds to an account designated in writing by
\nSeller at least two (2) business days prior to the Closing;<\/p>\n
(b) an assumption of the Seagate Software Information Management
\nGroup, Inc. Stock Option Plan; and<\/p>\n
(c) the certificates and other documents required to be delivered
\nas a condition to the Closing pursuant to Section 9.2 hereof.<\/p>\n
-6-
\n 11<\/p>\n
2.6 Adjustment of Required Cash. The amount of Required Cash shall be
\nsubject to adjustment prior to Closing in the manner set forth below:<\/p>\n
(a) TA Statement. No later than fifteen (15) calendar days prior
\nto the date of Seller Stockholder Meeting, Seller shall deliver to Purchaser the
\nTA Statement. If the Closing does not occur within twenty (20) calendar days of
\ndelivery of the TA Statement, a revised TA Statement shall be delivered to
\nPurchaser, and such revised TA Statement shall constitute the TA Statement for
\nall purposes hereof and shall be subject to Sections 2.6(b) and 2.6(c) below.<\/p>\n
(b) TA Statement Disputes.<\/p>\n
(i) Subject to the terms of Section 2.6(b)(ii) hereof, the
\nTA Statement shall be deemed to be and shall be final, binding and conclusive on
\nSeller and Purchaser.<\/p>\n
(ii) Purchaser shall be entitled to dispute any amounts
\nreflected on the TA Statement, but only on the basis that the amounts reflected
\non the TA Statement contain errors or are based on erroneous assumptions or were
\nnot arrived at in accordance with Seller’s accounting practices and policies
\napplied on a basis consistent with Seller’s past accounting practices and
\npolicies; provided, however, that Purchaser shall have notified Seller in
\nwriting of each disputed item, specifying the amount thereof in dispute and
\nsetting forth, in reasonable detail, the basis for such dispute, within seven
\n(7) calendar days of Seller’s delivery of the TA Statement to Purchaser. In the
\nevent of such a dispute, Seller and Purchaser shall attempt to reconcile their
\ndisputed amounts, and any resolution by them as to any disputed amounts shall be
\nfinal, binding and conclusive on Seller and Purchaser. In the event that Seller
\nand Purchaser are unable to reach a resolution of any disputed amounts within
\nfive (5) calendar days after receipt by Seller of Purchaser’s written notice of
\ndispute delivered in accordance with the foregoing, Seller and Purchaser shall
\nsubmit the items remaining in dispute for resolution to Arthur Andersen LLP (or,
\nif such firm shall decline to act or is not, at the time of such submission,
\nindependent of Seller and Purchaser, to another independent accounting firm of
\ninternational reputation mutually acceptable to Seller and Purchaser) (either
\nArthur Andersen LLP or such other accounting firm being referred to herein as
\nthe “INDEPENDENT ACCOUNTING FIRM”), which shall, on an expedited basis, within
\nfive (5) calendar days after such submission, determine and report to Seller and
\nPurchaser upon such remaining disputed items, and such report shall be final,
\nbinding and conclusive on Seller and Purchaser. The fees and disbursements of
\nthe Independent Accounting Firm shall be allocated between Seller and Purchaser
\nin the same proportion that the aggregate amount of such remaining disputed
\nitems so submitted to the Independent Accounting Firm that is unsuccessfully
\ndisputed by each such party (as finally determined by the Independent Accounting
\nFirm) bears to the total amount of such remaining disputed items so submitted.<\/p>\n
(iii) In acting under this Agreement, the Independent
\nAccounting Firm shall be entitled to the privileges and immunities of an
\narbitrator.<\/p>\n
(iv) The TA Statement shall be deemed final for the
\npurposes of and under this Section 2.6 upon the earlier to occur of (i) the
\nfailure of Purchaser to notify Seller of a dispute within seven (7) calendar
\ndays of Seller’s delivery of the TA Statement to Purchaser pursuant to Section
\n2.6(b)(ii) hereof, (ii) the resolution of all disputes, pursuant to<\/p>\n
-7-
\n 12<\/p>\n
Section 2.6(b)(ii) hereof, by Seller and Purchaser, and (iii) the resolution of
\nall disputes, pursuant to Section 2.6(b)(ii) hereof, by the Independent
\nAccounting Firm. At the Closing, (i) the Adjustment Amount set forth in the
\nfinal TA Statement shall be recalculated by using the VERITAS Price on the
\ntrading day immediately preceding the Effective Time under the VERITAS Merger
\nAgreement in substitution for that utilized in the estimated TA Statement, as
\nmay be adjusted by the Independent Accounting Firm and (ii) the amount of
\nRequired Cash shall be increased upward on a dollar for dollar basis, in an
\namount equal to the Adjustment Amount (as recalculated pursuant to the foregoing
\nclause of this Section 2.6(b)(iv)).<\/p>\n
2.7 Transaction Structure. The parties agree to cooperate and take all
\nrequisite actions prior to the Closing Date to merge, form, consolidate or alter
\nthe tax status of any of the Sold Subsidiaries or any Subsidiaries of the Sold
\nSubsidiaries to the extent desirable in the Purchaser’s judgment for commercial,
\nregulatory, tax or other reasons, and further agree that the Purchaser may at
\nany time change the structure of the transactions contemplated by this
\nAgreement, including without limitation, by determining the order in which the
\nSold Subsidiaries (and any assets of the Sold Subsidiaries) are transferred, and
\nthe Seller shall cooperate in such efforts, including by entering into
\nappropriate amendments to this Agreement, provided, however, that such actions
\nshall not decrease the amount or change the kind of the consideration paid to
\nSeller pursuant to this Agreement, increase Designated Liabilities or add
\ntransaction costs to those costs arising out of the transactions contemplated by
\nthis Agreement (unless Purchaser agrees to pay such additional costs). On or
\nprior to the Closing Date, Seller shall effectuate the Split.<\/p>\n
ARTICLE III
\n REPRESENTATIONS AND WARRANTIES OF SELLER<\/p>\n
Seller hereby represents and warrants to Purchaser, subject to the
\nexceptions and qualifications specifically set forth or disclosed in writing in
\nthe disclosure letter delivered by Seller to Purchaser, dated as of the date
\nhereof (the “SELLER DISCLOSURE SCHEDULE”), and after giving effect to the OD
\nDocuments, the Split and the transactions contemplated thereby, if relevant for
\nthe purposes of determining compliance herewith as follows:<\/p>\n
3.1 Organization; Good Standing. Seller and each of its Subsidiaries is
\na corporation duly organized, validly existing and in good standing under the
\nlaws of the jurisdiction of its incorporation or organization, with the
\ncorporate or other power and authority to own, lease and operate its assets and
\nproperties and to carry on its business as now being conducted, and is duly
\nqualified to do business and in good standing in each jurisdiction in which the
\nfailure to be so qualified would not reasonably be expected, individually or in
\nthe aggregate, to have a Material Adverse Effect.<\/p>\n
3.2 Charter Documents. Seller has delivered or made available to
\nPurchaser a true and correct copy of the Certificate of Incorporation and Bylaws
\nof Seller and SSHI and the organizational documents of each of the Sold
\nSubsidiaries, each as amended to date and in effect as of the date hereof, and
\neach such instrument is in full force and effect. Seller and SSHI are not in
\nviolation of any of the provisions of their Certificate of Incorporation or
\nBylaws.<\/p>\n
-8-
\n 13<\/p>\n
3.3 Subsidiaries. Section 3.3 of the Seller Disclosure Schedule contains
\na complete and accurate list of each Subsidiary of Seller, indicating the
\njurisdiction of incorporation of each such Subsidiary and Seller’s proportionate
\nequity interest therein. Each Subsidiary of Seller that is not a Sold Subsidiary
\n(other than SSHI) is owned, directly or indirectly, by a Sold Subsidiary.<\/p>\n
3.4 Capital Structure.<\/p>\n
(a) The authorized capital stock of each Sold Subsidiary is as
\nset forth in Section 3.4(a) of the Seller Disclosure Schedule. All of the Shares
\nare owned beneficially and of record by Seller or one of its Subsidiaries,
\nexcept for director’s qualifying shares and similar statutory de minimis
\nholdings. All of the Shares are duly authorized and validly issued, fully paid
\nand nonassessable, and are not subject to any preemptive rights created by
\nstatute, the organizational documents of Seller or any of its Subsidiaries, or
\nany agreement or document to which Seller or any of its Subsidiaries is a party
\nor by which of Seller or any of its Subsidiaries is bound and, when transferred
\nto Purchaser will be free and clear of all Liens. Except as set forth in Section
\n3.4(a) of the Seller Disclosure Schedule, there are no equity securities,
\npartnership interests or other similar ownership interests of any class or
\nseries of any Sold Subsidiary, or any securities convertible into, or
\nexercisable or exchangeable for, such equity securities, partnership interests
\nor similar ownership interests of any Sold Subsidiary, which are issued,
\nreserved for issuance or outstanding. Except as set forth in Section 3.4(a) of
\nthe Seller Disclosure Schedule, there are no options, warrants, equity
\nsecurities, partnership interests or other similar ownership interests, calls,
\nrights (including preemptive rights), commitments or agreements of any kind or
\ncharacter to which Seller or any of its Subsidiaries is a party or by which
\nSeller or any of its Subsidiaries is bound obligating Seller or any of its
\nSubsidiaries to issue, deliver or sell (or cause to be issued, delivered or
\nsold), or repurchase, redeem or otherwise acquire (or cause the repurchase,
\nredemption or acquisition of), any shares of capital stock of any Sold
\nSubsidiary or any Subsidiaries thereof, or obligating Seller or any of its
\nSubsidiaries to grant, extend, accelerate the vesting of or enter into any such
\noption, warrant, equity security, partnership interest or similar ownership
\ninterest, call, right, commitment or agreement. There are no registration
\nrights, proxies or other agreements or understandings with respect to any equity
\nsecurity, partnership interest or other similar ownership interest of any class
\nor series of any capital stock of any Sold Subsidiary or any Subsidiaries
\nthereof.<\/p>\n
(b) The only outstanding Indebtedness of Seller and its
\nSubsidiaries is (i) $200 million in principal amount of 7.125% Senior Notes Due
\nMarch 1, 2004 (the “2004 SENIOR NOTES”) issued pursuant to the Indenture, dated
\nas of March 1, 1997 (the “INDENTURE”), (ii) $200 million in aggregate principal
\namount of 7.37% Senior Notes Due March 1, 2007 (the “2007 SENIOR NOTES”) issued
\npursuant to the Indenture, (iii) $100 million in principal amount of 7.875%
\nSenior Debentures due March 1, 2017 (the “2017 SENIOR DEBENTURES”) issued
\npursuant to the Indenture, (iv) $200 million in principal amount of 7.45% Senior
\nDebentures due March 1, 2037 (the “2037 SENIOR DEBENTURES”) and, together with
\nthe 2004 Notes, the 2007 Notes and the 2017 Senior Debentures, the “DEBENTURES”)
\nissued pursuant to the Indenture. Other than the Debentures, which are
\nredeemable in full in accordance with their respective terms, there is no
\nIndebtedness of Seller or its Subsidiaries.<\/p>\n
3.5 Authority. Each of Seller and SSHI has all necessary corporate power
\nand authority to enter into this Agreement and the OD Documents, to perform its
\nobligations<\/p>\n
-9-
\n 14<\/p>\n
hereunder and thereunder and to consummate the transactions contemplated hereby
\nand thereby. The execution and delivery of this Agreement and the OD Documents
\nby Seller and SSHI, and the performance by Seller and SSHI of its obligations
\nhereunder and thereunder and the consummation by Seller and SSHI of the
\ntransactions contemplated hereby and thereby, have been duly authorized by all
\nnecessary corporate action on the part of Seller and SSHI, subject only to the
\napproval and adoption of this Agreement and the OD Documents by the stockholders
\nof Seller in accordance with Delaware Law. The affirmative vote of the holders
\nof at least a majority of the outstanding shares of Seller Common Stock is the
\nonly vote required for the stockholders of Seller to approve this Agreement, the
\nOD Documents and the transactions contemplated hereby and thereby under the
\napplicable rules of The New York Stock Exchange, Inc. (the “NYSE”), Delaware Law
\nand all other legal and regulatory requirements applicable thereto (the
\n“REQUIRED STOCKHOLDER APPROVAL”). This Agreement and the OD Documents have been
\nduly executed and delivered by Seller and SSHI and, assuming the due
\nauthorization, execution and delivery of this Agreement by Purchaser and the OD
\nDocuments by the other party or parties thereto, constitute the valid and
\nbinding obligations of Seller and SSHI, enforceable in accordance with their
\nrespective terms, subject to (i) the effect of any applicable laws of general
\napplication relating to bankruptcy, reorganization, insolvency, moratorium or
\nother similar laws affecting creditors’ rights and the relief of debtors
\ngenerally, and (ii) the effect of rules of law and general principles of equity,
\nincluding, without limitation, rules of law and general principles of equity
\ngoverning specific performance, injunctive relief and other equitable remedies
\n(regardless of whether such enforceability is considered in a proceeding in
\nequity or at law).<\/p>\n
3.6 Conflicts. The execution and delivery of this Agreement by Seller
\nand SSHI does not, and the performance by Seller and SSHI of its obligations
\nhereunder and the consummation by Seller and SSHI of the transactions
\ncontemplated hereby will not, (i) conflict with or violate the Certificate of
\nIncorporation or Bylaws of Seller and SSHI or the organizational documents of
\nany of its Subsidiaries, (ii) subject to compliance with the requirements set
\nforth in Section 3.7 hereof, conflict with or violate any Law, rule, regulation,
\norder, judgment or decree applicable to Seller or any of its Subsidiaries, or by
\nwhich Seller, any of its Subsidiaries or any of their respective assets and
\nproperties are bound or affected, or (iii) result in any breach of, or
\nconstitute a default (or an event that with notice or lapse of time or both
\nwould become a default) under, or impair the rights of Seller or any of its
\nSubsidiaries under, or alter the obligations of any third party under, or give
\nto others any rights of termination, amendment, acceleration or cancellation of,
\nor result in the creation of a Lien on any of the assets or properties of Seller
\nor any of its Subsidiaries pursuant to, any note, bond, mortgage, indenture,
\ncontract, agreement, lease, license, permit, franchise or other instrument or
\nobligation to which Seller or any of its Subsidiaries is a party or by which
\nSeller, any of its Subsidiaries or any of their respective assets and properties
\nare bound or affected, except to the extent such conflict, violation, breach,
\ndefault, impairment or other effect could not, in the case of clause (ii) or
\n(iii) of this Section 3.6, individually or in the aggregate, (a) reasonably be
\nexpected to have a Material Adverse Effect, or (b) reasonably be expected to
\nhave a material adverse effect on, or materially delay, the ability of
\nPurchaser, Seller or SSHI to consummate the transactions contemplated hereby.<\/p>\n
3.7 Consents. No consent, approval, order or authorization of, or
\nregistration, declaration or filing with, any Governmental Authority is required
\nby or with respect to Seller or<\/p>\n
-10-
\n 15<\/p>\n
any of its Subsidiaries in connection with the execution and delivery of this
\nAgreement and the OD Documents by Seller, or the performance by Seller of its
\nobligations hereunder and thereunder or the consummation by Seller of the
\ntransactions contemplated hereby and thereby, except for (i) the filing of the
\nProxy Statement (as defined in Section 6.1(a) hereof) with the SEC in accordance
\nwith the Exchange Act, (ii) consents, approvals, orders, authorizations,
\nregistrations, declarations and filings as may be required under the HSR Act or
\nany applicable state antitrust Laws, (iii) consents, approvals, orders,
\nauthorizations, registrations, declarations and filings as may be required under
\nthe Laws of any foreign country, and (iv) such other consents, authorizations,
\nfilings, approvals and registrations which, if not obtained or made, would not
\nhave a Material Adverse Effect or have a material adverse effect on, or
\nmaterially delay, the ability of Seller or Purchaser to consummate the
\ntransactions contemplated hereby.<\/p>\n
3.8 SEC Filings; Seller Financial Statements.<\/p>\n
(a) Seller has filed all forms, reports and documents required to
\nbe filed with the SEC since July 3, 1998, and has made available (through
\non-line databases) to Purchaser such forms, reports and documents in the form
\nfiled with the SEC. All such required forms, reports and documents (including
\nall exhibits and schedules thereto and all documents incorporated by reference
\ntherein) are referred to herein as the “SELLER SEC REPORTS.” As of their
\nrespective dates, the Seller SEC Reports (i) complied in all material respects
\nwith the applicable requirements of the Securities Act or the Exchange Act, and
\nthe rules and regulations of the SEC promulgated thereunder, and (ii) did not at
\nthe time each such Seller SEC Report was filed (or if amended or superseded by a
\nfiling prior to the date of this Agreement, then on the date of such filing)
\ncontain any untrue statement of a material fact or omit to state a material fact
\nrequired to be stated therein or necessary in order to make the statements
\ntherein, in the light of the circumstances under which they were made, not
\nmisleading. None of the Subsidiaries of Seller is required to file any forms,
\nreports or other documents with the SEC. Except to the extent revised or
\nsuperseded by a subsequent filing with the SEC, none of the Seller SEC Reports
\nfiled by Seller since July 3, 1999 and prior to the date of this Agreement
\n(collectively, the “RECENT SEC REPORTS”) contains any untrue statement of a
\nmaterial fact or omits to state any material fact required to be stated therein
\nor necessary in order to make the statements therein, in the light of the
\ncircumstances under which they were made, not misleading. The consolidated
\nfinancial statements of Seller included in all Seller SEC Reports comply as to
\nform in all material respects with applicable accounting requirements and the
\npublished rules and regulations of the SEC with respect thereto, have been
\nprepared in accordance with GAAP (except, in the case of unaudited consolidated
\nquarterly statements, as permitted by Form 10-Q of the SEC) applied on a
\nconsistent basis during the periods involved (except as may be indicated in the
\nnotes thereto) and fairly present the consolidated financial position of Seller
\nand its consolidated Subsidiaries as of the dates thereof and the consolidated
\nfinancial position of Seller and its consolidated Subsidiaries as of the dates
\nthereof and the consolidated results of their operations and cash flows for the
\nperiods then ended (subject, in the case of unaudited quarterly statements, to
\nnormal year-end audit adjustments). Except as reflected in the most recent
\nconsolidated balance sheet of Seller included in the Recent SEC Reports most
\nrecently filed by Seller with the SEC prior to the date hereof (such
\nconsolidated balance sheet being referred to herein as the “CURRENT SELLER
\nBALANCE SHEET” and the date thereof being referred to herein as the “CURRENT
\nBALANCE SHEET DATE”), as of the Current Balance Sheet Date, neither Seller nor
\nany of<\/p>\n
-11-
\n 16
\nits Subsidiaries had, and since such date neither Seller nor any of such
\nSubsidiaries has incurred, any Liabilities or obligations of any nature (whether
\naccrued, absolute, contingent or otherwise) which, individually or in the
\naggregate, would reasonably be expected to have a Material Adverse Effect.<\/p>\n
3.9 [Reserved]<\/p>\n
3.10 Absence of Certain Changes or Events. Except as reflected in the
\nRecent SEC Reports or Section 3.10 of the Seller Disclosure Schedule, since the
\ndate of the last audited financial statements of Seller included in the Recent
\nSEC Reports, Seller has conducted its business only in the ordinary course
\nconsistent with past practice, and there is not and has not been (i) any
\ncondition, event or occurrence which, individually or in the aggregate, would
\nreasonably be expected to have a Material Adverse Effect, or (ii) any condition,
\nevent or occurrence which could reasonably be expected to prevent, hinder or
\nmaterially delay the ability of Seller to consummate the transactions
\ncontemplated by this Agreement or the VERITAS Merger Agreement. Except as set
\nforth in Section 3.10 of the Seller Disclosure Schedule, since the date of
\nSeller’s most recent periodic report on Form 10-Q included in the Recent SEC
\nReports, there is not and has not been any event or action described in Section
\n5.2 hereof.<\/p>\n
3.11 Tax Matters.<\/p>\n
(a) Seller and each of its Subsidiaries have timely filed all
\nfederal, state, local and foreign returns, estimates, information statements and
\nreports (“RETURNS”) relating to Taxes required to be filed by Seller and each of
\nits Subsidiaries with any Tax authority, except such Returns which are not
\nmaterial to Seller or any such Subsidiaries, and all such Returns are true,
\ncorrect and complete in all material respects. Seller and each of its
\nSubsidiaries have paid all Taxes due and payable on such Returns.<\/p>\n
(b) As of the Closing Date, Seller and each of its Subsidiaries
\nwill have withheld with respect to its employees all federal and state income
\nTaxes, Taxes payable pursuant to the Federal Insurance Contribution Act, Taxes
\npayable pursuant to the Federal Unemployment Tax Act and other Taxes required to
\nbe withheld, except such Taxes which are not material to Seller or any such
\nSubsidiaries.<\/p>\n
(c) Neither Seller nor any of its Subsidiaries has been
\ndelinquent in the payment of any material Tax. Section 3.11(c) of the Seller
\nDisclosure Schedule contains a complete and accurate list of all material Tax
\ndeficiencies outstanding, proposed or assessed against Seller or any of its
\nSubsidiaries, and a complete and accurate list of all Seller’s or any of its
\nSubsidiaries’ executed and unexpired waiver of any statute of limitations on or
\nextending the period for the assessment or collection of any Liabilities for any
\nTax.<\/p>\n
(d) Section 3.11(d) of the Seller Disclosure Schedule contains a
\ncomplete and accurate list of all audits or other examinations of any Return of
\nSeller or any of its Subsidiaries by any Tax authority is presently in progress,
\nand a complete and accurate list of all Seller’s or any of its Subsidiaries’
\nnotifications of any request for such an audit or other examination.<\/p>\n
-12-
\n 17<\/p>\n
(e) Section 3.11(e) of the Seller Disclosure Schedule contains
\na complete and accurate list of all adjustments relating to any Returns filed by
\nSeller or any of its Subsidiaries that have been proposed in writing formally or
\ninformally by any Tax authority to Seller or any of its Subsidiaries or any
\nrepresentative thereof.<\/p>\n
(f) Neither Seller nor any of its Subsidiaries has any Liability
\nfor any material unpaid Taxes which has not been accrued for or reserved on the
\nCurrent Seller Balance Sheet in accordance with GAAP, contingent or otherwise,
\nwhich is material to Seller or any of its Subsidiaries, other than any Liability
\nfor unpaid Taxes that may have accrued in connection with the operation of the
\nbusiness of Seller and its Subsidiaries in the ordinary course.<\/p>\n
(g) Section 3.11(g) of the Seller Disclosure Schedule contains a
\ncomplete and accurate list of all contracts, agreements, plans or arrangements
\nto which Seller or any of its Subsidiaries is a party as of the date of this
\nAgreement (including, without limitation, the provisions of this Agreement),
\ncovering any employee or former employee of Seller or any of its Subsidiaries
\nthat, individually or collectively, would reasonably be expected to give rise to
\nthe payment of any amount that would not be deductible pursuant to Sections
\n280G, 404 or 162(m) of the Code. The Seller Disclosure Schedule contains a
\ncomplete and accurate list of contracts, agreements, plans or arrangements to
\nwhich Seller is a party or by which it is bound to compensate any individual for
\nexcise taxes paid pursuant to Section 4999 of the Code. Except as set forth in
\nSection 3.11(g) of the Seller Disclosure Schedule, no Seller Plan (as defined in
\nSection 3.16(a) hereof) exists that could result in the payment to any present
\nor former employee of Seller or any of its Subsidiaries of any money or other
\nproperty, or accelerate or provide any other rights or benefits to any present
\nor former employee of Seller or any of its Subsidiaries as a result of the
\ntransaction contemplated by this Agreement or the OD Documents.<\/p>\n
(h) There are no Liens with respect to Taxes upon the assets of
\nSeller or any of its Subsidiaries, other than with respect to Taxes not yet due
\nand payable or which are being contested in good faith.<\/p>\n
(i) Neither Seller nor any of its Subsidiaries has filed any
\nconsent agreement under Section 341(f) of the Code, or agreed to have Section
\n341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as
\ndefined in Section 341(f)(4) of the Code) owned by Seller or any of its
\nSubsidiaries.<\/p>\n
(j) Section 3.11(j) of the Seller Disclosure Schedule contains a
\ncomplete and accurate list of all Seller’s and any of its Subsidiaries’
\nTax-sharing, Tax indemnity or Tax allocation agreements or arrangements.<\/p>\n
(k) None of the assets or properties of Seller or any of its
\nSubsidiaries are Tax exempt use property within the meaning of Section 168(h) of
\nthe Code.<\/p>\n
(l) Seller has no excess loss accounts with respect to the stock
\nof any of its Subsidiaries. The transactions contemplated by this Agreement will
\nnot result in the recognition of a material amount of deferred intercompany gain
\nunder the deferred intercompany transaction rules of the Code.<\/p>\n
-13-
\n 18<\/p>\n
3.12 Compliance. Neither Seller nor any of its Subsidiaries is, in any
\nmaterial respect, in conflict with, or in default or violation of (i) any Law
\n(including the Foreign Corrupt Practices Act of 1977), rule, regulation, order,
\njudgment or decree applicable to Seller or any of its Subsidiaries or by which
\nSeller or any of its Subsidiaries or any of their respective assets and
\nproperties are bound or affected, or (ii) any note, bond, mortgage, indenture,
\ncontract, agreement, lease, license, permit, franchise or other instrument or
\nobligation to which Seller or any of its Subsidiaries is a party or by which
\nSeller or any of its Subsidiaries or its or any of their respective assets and
\nproperties are bound or affected. No investigation or review by any Governmental
\nAuthority is pending or, to the knowledge of Seller, threatened, against Seller
\nor any of its Subsidiaries, nor has any Governmental Authority indicated an
\nintention to conduct the same, other than routine investigations in the ordinary
\ncourse of Seller’s business. There is no agreement, judgment, injunction, order
\nor decree binding upon Seller or any of its Subsidiaries which has, or could
\nreasonably be expected to have, the effect of prohibiting or materially
\nimpairing any business practice of Seller or any of its Subsidiaries, any
\nacquisition of material property by Seller or any of its Subsidiaries or the
\nconduct of business by Seller or any of its Subsidiaries as currently conducted.<\/p>\n
3.13 Permits. Seller and its Subsidiaries hold all permits, licenses,
\nvariances, exemptions, orders and approvals from Governmental Authorities which
\nare material to the operation of the business of Seller and its Subsidiaries,
\nand Seller and its Subsidiaries are in compliance in all material respects with
\nthe terms of such permits, licenses, variances, exemptions, order and approvals.<\/p>\n
3.14 Litigation. There is no Action, suit, proceeding, claim,
\narbitration or investigation pending against Seller or any of its Subsidiaries
\nor as to which Seller or any of its Subsidiaries has received any notice of
\nassertion, nor to the knowledge of Seller, is there any threatened Action, suit,
\nproceeding, claim, arbitration or investigation pending against Seller or any of
\nits Subsidiaries, in either case which individually or in the aggregate, could
\nreasonably be expected to have a Material Adverse Effect.<\/p>\n
3.15 Brokers’ and Finders’ Fees. Except for fees payable to Morgan
\nStanley & Co., Incorporated, neither Seller nor any of its Subsidiaries has
\nincurred, nor will Seller or any of its Subsidiaries incur, directly or
\nindirectly, any Liability for brokerage or finders’ fees or agents’ commissions
\nor any similar charges in connection with this Agreement or any transaction
\ncontemplated hereby.<\/p>\n
3.16 Employee Benefit Plans.<\/p>\n
(a) Section 3.16(a) of the Seller Disclosure Schedule contains a
\ncomplete and accurate list of all employee compensation, incentive, fringe or
\nbenefit plans, programs, policies, commitments, agreements (including, without
\nlimitation, all employment, severance, change of control or similar agreements)
\nor other arrangements (whether or not set forth in a written document and
\nincluding, without limitation, all “employee benefit plans” within the meaning
\nof Section 3(3) of ERISA) maintained or contributed to by Seller or a Seller
\naffiliate covering any active or former employee, director or consultant of
\nSeller (each, a “SELLER EMPLOYEE” and, collectively, the “SELLER EMPLOYEES”
\nwhich shall, for all purposes of and under this Section 3.16, mean an employee
\nof Seller or a Seller Affiliate (as defined below)), any Subsidiary of Seller or<\/p>\n
-14-
\n 19<\/p>\n
any trade or business (whether or not incorporated) which is a member of a
\ncontrolled group or which is under common control with Seller within the meaning
\nof Section 414(b), (c) or (m) of the Code (each, a “SELLER AFFILIATE” and,
\ncollectively, the “SELLER AFFILIATES”) (each, a “SELLER PLAN” and, collectively,
\nthe “SELLER PLANS”). Seller has provided or made available to Purchaser: (i)
\ncorrect and complete copies of all documents embodying each Seller Plan,
\nincluding, without limitation, all amendments thereto, all trust documents
\nrelated thereto, and all material written agreements and contracts related
\nthereto; (ii) the most recent annual reports (Form Series 5500 and all schedules
\nand financial statements attached thereto), if any, required under ERISA or the
\nCode in connection with each Seller Plan; (iii) the most recent summary plan
\ndescription together with the summary(ies) of material modifications thereto, if
\nany, required under ERISA with respect to each Seller Plan; (iv) all IRS
\ndetermination, opinion, notification and advisory letters with respect to each
\nSeller Plan; (v) all material correspondence to or from any Governmental
\nAuthority relating to any Seller Plan; (vi) all forms and related notices
\nrequired under the Consolidated Omnibus Budget Reconciliation Act of 1985, as
\namended, with respect to each Seller Plan; (vii) the most recent discrimination
\ntests for each Seller Plan required to perform such tests; (viii) the most
\nrecent actuarial valuations, if any, prepared for each Seller Plan; (ix) if the
\nSeller Plan is funded, the most recent annual and periodic accounting of the
\nassets of each Seller Plan; and (x) all communication to Seller Employees
\nrelating to any Seller Plan and any proposed Seller Plan, in each case, relating
\nto any amendments, terminations, establishments, increases or decreases in
\nbenefits, acceleration of payments or vesting schedules, or other events which
\nwould result in any material Liability to Seller or any Seller Affiliate in
\nrespect of any Seller Plan.<\/p>\n
(b) Each Seller Plan has been maintained and administered in all
\nmaterial respects in compliance with its terms and with the requirements
\nprescribed by any and all Laws applicable thereto (including, without
\nlimitation, ERISA and the Code). No Action, suit or other litigation (excluding
\nclaims for benefits incurred in the ordinary course of Seller Plan activities)
\nhas been brought, or to the knowledge of Seller, is threatened, against or with
\nrespect to any such Seller Plan. There are no audits, inquiries or proceedings
\npending or, to the knowledge of Seller, threatened by the IRS or the United
\nStates Department of Labor with respect to any Seller Plans. All contributions,
\nreserves or premium payments required to be made or accrued as of the date
\nhereof to the Seller Plans have been timely made or accrued. Any Seller Plan
\nintended to be qualified under Section 401(a) of the Code, and each trust
\nintended to qualify under Section 501(a) of the Code (i) has either obtained
\nfrom the IRS a favorable determination, notification, advisory and\/or opinion
\nletter, as applicable, as to its qualified status under the Code, or still has a
\nremaining period of time under applicable treasury regulations or IRS
\npronouncements in which to apply for such letter and to make any amendments
\nnecessary to obtain a favorable determination as to its qualified status under
\nthe Code, and (ii) except with respect to amendments for which the Internal
\nRevenue Service has allowed until December 31, 2000, incorporates or has been
\namended to incorporate all provisions required to comply with the Tax Reform Act
\nof 1986 and subsequent legislation. To the knowledge of Seller, no condition or
\ncircumstance exists giving rise to a material likelihood that any such Seller
\nPlan would not be treated by the IRS as qualified under the Code, except as set
\nforth in Section 3.16(b) of the Seller Disclosure Schedule. Seller does not have
\nany plan or commitment to establish any new Seller Plan, to modify any existing
\nSeller Plan (except to the extent required by Law or to conform any such Seller
\nPlan to the requirements of any applicable Law, in each case as previously
\ndisclosed<\/p>\n
-15-
\n 20<\/p>\n
to Purchaser in writing, or as required by the terms of any Seller Plan or this
\nAgreement), or to enter into any new Seller Plan. Each Seller Plan can be
\namended, terminated or otherwise discontinued after the Closing Date in
\naccordance with its terms, without Liability to Purchaser, Seller or any of the
\nSeller Affiliates (other than ordinary administration expenses).<\/p>\n
(c) Neither Seller, any of its Subsidiaries, nor any of the
\nSeller Affiliates has at any time ever maintained, established, sponsored,
\nparticipated in, or contributed to any plan subject to Title IV of ERISA or
\nSection 412 of the Code, and at no time has Seller contributed to or been
\nrequested to contribute to any “multiemployer plan,” as such term is defined in
\nERISA. To Seller’s knowledge, there are no circumstances which could reasonably
\nbe expected to subject Seller, any of its Subsidiaries, or any officer or
\ndirector of Seller or any of its Subsidiaries, to any material Liability or
\npenalty under Section 4975 through 4980B of the Code or Title I of ERISA. No
\n“prohibited transaction,” within the meaning of Section 4975 of the Code or
\nSections 406 and 407 of ERISA, and not otherwise exempt under Section 4975 of
\nthe Code and Section 408 of ERISA, has occurred with respect to any Seller Plan
\nwhich could reasonably be expected to subject Seller or any Seller Affiliates to
\nmaterial Liability.<\/p>\n
(d) Except as set forth in Section 3.16(d) of the Seller
\nDisclosure Schedule, none of the Seller Plans promises or provides retiree
\nmedical or other retiree welfare benefits to any person except as required by
\napplicable Law, and neither Seller nor any of its Subsidiaries has represented,
\npromised or contracted (whether in oral or written form) to provide such retiree
\nbenefits to any Seller Employee, former employee, director, consultant or other
\nperson, except to the extent required by applicable Law.<\/p>\n
(e) Each Seller International Employee Plan (as defined below)
\nhas been established, maintained and administered in compliance in all material
\nrespects with its terms and conditions and with the requirements prescribed by
\nany and all applicable Laws. No Seller International Employee Plan has unfunded
\nLiabilities that, as of the Closing, will not be offset by insurance or fully
\naccrued. Except as required by applicable Law, no condition exists that would
\nprevent Seller or Purchaser from terminating or amending any Seller
\nInternational Employee Plan at any time for any reason. For all purposes of and
\nunder this Agreement, the term “SELLER INTERNATIONAL EMPLOYEE PLAN” shall mean
\neach Seller Plan that has been adopted or maintained by Seller or any of its
\nSubsidiaries, whether informally or formally, for the benefit of current or
\nformer employees of Seller or any of its Subsidiaries who are not United States
\ncitizens and who are employed outside the United States.<\/p>\n
3.17 Absence of Liens. Seller and each of its Subsidiaries has good and
\nvalid title to, or in the case of leased assets and properties valid leasehold
\ninterests in, all of its material tangible assets and properties, real, personal
\nand mixed, used in their respective businesses, free and clear of any Liens,
\nexcept (i) as reflected in the consolidated balance sheet of Seller included in
\nthe Recent SEC Reports, (ii) for Liens for Taxes not yet due and payable, and
\n(iii) for such imperfections of title and encumbrances, if any, which would not
\nbe material to Seller or any of its Subsidiaries.<\/p>\n
3.18 Environmental Matters.<\/p>\n
-16-
\n 21<\/p>\n
(a) For all purposes of and under this Agreement, the following
\nterms shall have the following respective meanings:<\/p>\n
(i) “ENVIRONMENTAL CLAIM” or “ENVIRONMENTAL CLAIMS” means
\nany and all administrative, regulatory or judicial actions, suits, causes of
\naction, demands, demand letters, claims, Liens, notices of non-compliance,
\npotential liability or violation, investigations, proceedings, consent orders or
\nconsent or settlement agreements relating in any way to any Environmental Laws
\nor any Environmental Permits, including, without limitation, (A) any and all
\nclaims or directions by Governmental Authorities for enforcement, investigation,
\ncleanup, removal, response, remedial or other actions or damages pursuant to any
\napplicable Environmental Law, and (B) any and all Claims by any Person seeking
\ndamages (including with respect to natural resource damages, property damage,
\ndiminution in value and personal injury) contribution, indemnification, cost
\nrecovery, compensation or injunctive relief resulting from Hazardous Materials
\nor arising from alleged injury or threat of injury to health, safety or the
\nenvironment.<\/p>\n
(ii) “ENVIRONMENTAL LAW” or “ENVIRONMENTAL LAWS” means any
\nLaw, now or hereafter in effect and as amended, and any judicial or
\nadministrative interpretation thereof, including any judicial or administrative
\norder, consent decree or judgment, relating to the environment, natural
\nresources, health, safety or Hazardous Materials, including, without limitation,
\nthe Comprehensive Environmental Response, Compensation and Liability Act, 42
\nU.S.C. Sections 9601 et seq.; the Resource Conservation and Recovery Act, 42
\nU.S.C. Sections 6901 et seq.; the Hazardous Materials Transportation Act, 49
\nU.S.C. Sections 5101 et seq.; the Clean Water Act, 33 U.S.C. Sections 1251 et
\nseq.; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.; the
\nClean Air Act, 42 U.S.C. Sections 7401 et seq.; the Safe Drinking Water Act, 42
\nU.S.C. Sections 300f et seq.; the Occupational Safety and Health Act, 29 U.S.C.
\nSections 1651 et seq., the Atomic Energy Act, 42 U.S.C. Sections 2014 et seq.;
\nthe Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et
\nseq. and the Federal Food, Drug and Cosmetic Act, 21 U.S.C. Sections 301 et seq.
\nand analogous state, provincial and foreign laws.<\/p>\n
(iii) “ENVIRONMENTAL PERMIT” or “ENVIRONMENTAL PERMITS”
\nmeans all permits, approvals, registrations, identification numbers, licenses
\nand other authorizations required under any applicable Environmental Laws.<\/p>\n
(iv) “HAZARDOUS MATERIAL” or “HAZARDOUS MATERIALS” means
\n(A) petroleum and petroleum products, radioactive materials, asbestos in any
\nform that is or could become friable, urea formaldehyde foam insulation,
\ntransformers or other equipment that contain polychlorinated biphenyls, and
\nradon gas, (B) any other chemicals, materials or substances defined as or
\nincluded in the definition of “hazardous substances”, “hazardous wastes”,
\n“hazardous materials”, “extremely hazardous wastes”, “restricted hazardous
\nwastes”, “toxic substances”, “toxic pollutants”, “contaminants” or “pollutants”,
\nor words of similar import, under any applicable Environmental Law, and (C) any
\nother chemical, material or substance the use, handling, generation, treatment,
\nstoring, release or exposure to which is regulated by any Governmental
\nAuthority.<\/p>\n
(b) Except as would not reasonably be expected to result in a
\nMaterial Adverse Effect, (i) neither Seller nor any of its Subsidiaries has
\ntransported, stored, used,<\/p>\n
-17-
\n 22<\/p>\n
manufactured, disposed of, released or exposed its employees or others to any
\nHazardous Materials in violation of any Law, and (ii) neither Seller nor any of
\nits Subsidiaries has disposed of, transported, sold, used, released, exposed its
\nemployees or others to or manufactured any product containing a Hazardous
\nMaterial (collectively, “HAZARDOUS MATERIALS ACTIVITIES”) in violation of any
\nEnvironmental Law.<\/p>\n
(c) Except as set forth in Section 3.18(c) of the Seller
\nDisclosure Schedule, (i) no material Action, proceeding, revocation proceeding,
\namendment procedure, writ, injunction or claim is pending, or to the knowledge
\nof Seller, threatened, concerning any Environmental Permit, Hazardous Material
\nor any Hazardous Materials Activities of Seller or any of its Subsidiaries; and
\n(ii) Seller is not aware of any fact or circumstance which could involve Seller
\nor any of its Subsidiaries in any material Environmental Claim or impose upon
\nSeller or any of its Subsidiaries any material Liabilities under any
\nEnvironmental Law.<\/p>\n
(d) Except as would not reasonably be expected to result in a
\nMaterial Adverse Effect, (i) each of Seller and its Subsidiaries are
\nconsistently and reliably in compliance in all respects with all applicable
\nEnvironmental Laws; and (ii) Seller has obtained and is, as presently operating,
\nconsistently and reliably in compliance with the conditions of all Environmental
\nPermits necessary under any Environmental Law for the continued conduct of the
\nbusiness and operations of Seller in the manner now conducted.<\/p>\n
(e) No investigation or review with respect to such matters is
\npending or threatened, nor has any Governmental Authority or other person
\nindicated an intention to conduct the same, other than routine investigations
\nand reviews taken in the ordinary course of business.<\/p>\n
3.19 Labor Matters. (i) There are no controversies pending or, to the
\nknowledge of Seller, threatened, between Seller or any of its Subsidiaries and
\nany of their respective employees; (ii) as of the date hereof, neither Seller
\nnor any of its Subsidiaries is a party to any collective bargaining agreement or
\nother labor union contract applicable to persons employed by Seller or any of
\nits Subsidiaries, nor does Seller know of any activities or proceedings of any
\nlabor union to organize any such employees; and (iii) as of the date hereof,
\nSeller has no any knowledge of any strikes, slowdowns, work stoppages or
\nlockouts, or threats thereof, by or with respect to any employees of Seller or
\nany of its Subsidiaries.<\/p>\n
3.20 Agreements, Contracts and Commitments. Except as set forth in
\nSection 3.20 of the Seller Disclosure Schedule, neither Seller nor any of its
\nSubsidiaries is a party to or is bound by any of the following to the extent
\ncurrently in force:<\/p>\n
(a) any employment or consulting agreement, contract or
\ncommitment with any officer or director of Seller, other than those that are
\nterminable on no more than thirty (30) days’ notice;<\/p>\n
(b) any agreement, contract or commitment relating to the
\ndisposition or acquisition by Seller or any of its Subsidiaries, after the date
\nhereof, of a material amount of assets or properties other than in the ordinary
\ncourse of business;<\/p>\n
-18-
\n 23<\/p>\n
(c) any agreement, contract or commitment to license any third
\nparty to manufacture or reproduce any Seller product, service or technology, or
\nany agreement, contract or commitment to sell or distribute any Seller products,
\nservice or technology, except in each case for agreements entered into in the
\nordinary course of business; or<\/p>\n
(d) any mortgages, indentures, guarantees, loans or credit
\nagreements, security agreements or other agreements, contracts or commitments
\nrelating to the borrowing of money or extension of credit.<\/p>\n
3.21 Statements; Registration Statement; Proxy Statement\/Prospectus.
\nNone of the information supplied or to be supplied by Seller for inclusion or
\nincorporation by reference in (i) the Registration Statement (as defined in
\nSection 6.1(a) hereof) will, at the time it is declared or ordered effective
\nunder the Securities Act, contain any untrue statement of a material fact or
\nomit to state any material fact required to be stated therein or necessary in
\norder to make the statements therein, in light of the circumstances under which
\nthey were made, not misleading, or (ii) the Proxy Statement (as defined in
\nSection 6.1(a) hereof) will, on the date it is first mailed to the stockholders
\nof Seller, at the time of the Seller Stockholders’ Meeting (as defined in
\nSection 6.1(a) hereof) and at the Closing Date, contain any untrue statement of
\na material fact or omit to state any material fact required to be stated therein
\nor necessary in order to make the statements therein, in light of the
\ncircumstances under which they are made, not false or misleading, or omit to
\nstate any material fact necessary to correct any statement in any earlier
\ncommunication with respect to the solicitation of proxies for the Seller
\nStockholders’ Meeting which has become false or misleading. The Proxy Statement
\nwill comply as to form in all material respects with the provisions of the
\nExchange Act and the rules and regulations promulgated thereunder.
\nNotwithstanding the foregoing, Seller makes no representation or warranty with
\nrespect to any information supplied by Purchaser which is contained in the Proxy
\nStatement.<\/p>\n
3.22 Board Approval. The Board of Directors of Seller has (i) determined
\nthat this Agreement and the transactions contemplated hereby are fair to,
\nadvisable and in the best interests of Seller and its stockholders, (ii) duly
\napproved this Agreement and the transactions contemplated hereby, and (iii)
\nresolved to recommend that the stockholders of Seller approve this Agreement and
\nthe transactions contemplated hereby.<\/p>\n
3.23 State Takeover Statutes. The Board of Directors of Seller has
\napproved this Agreement and the transactions contemplated hereby, and such
\napproval is sufficient to render inapplicable to this Agreement and the
\ntransactions contemplated hereby the provisions of Section 203 of Delaware Law
\nto the extent, if any, such provisions are applicable to this Agreement and the
\ntransactions contemplated hereby. No other state takeover statute or similar
\nstatute or regulation applies to or purports to apply to this Agreement or the
\ntransactions contemplated hereby.<\/p>\n
3.24 Fairness Opinion. Seller has received a written opinion from Morgan
\nStanley & Co. Incorporated, dated as of the date hereof, to the effect that, as
\nof the date hereof, the Merger Consideration (as defined in the VERITAS Merger
\nAgreement) payable pursuant to the VERITAS Merger Agreement is fair to the
\nstockholders of Seller from a financial point of view.<\/p>\n
3.25 Intellectual Property.<\/p>\n
-19-
\n 24<\/p>\n
(a) Seller or its Subsidiaries own, or possess licenses or other
\nvalid rights to use, and immediately prior to Closing the Sold Subsidiaries or
\none or more of their Subsidiaries will own, or possess licenses or other valid
\nrights to use, all Intellectual Property (as defined in Section 3.25(d) hereof)
\nnecessary for the conduct of the business of Seller and its Subsidiaries as
\ncurrently conducted. Except as set forth in Section 3.25(a) of the Seller
\nDisclosure Schedule, (i) the conduct of the business of Seller and its
\nSubsidiaries as currently conducted does not infringe or otherwise violate any
\nIntellectual Property of any third party except where such infringement would
\nnot reasonably be expected to have a Material Adverse Effect, and (ii) no person
\nis infringing or otherwise violating any Intellectual Property of Seller or its
\nSubsidiaries, except where such infringement would not reasonably be expected to
\nhave a Material Adverse Effect. Except as set forth in Section 3.25(a) of the
\nSeller Disclosure Schedule, the execution and delivery of this Agreement and the
\nconsummation of the transactions contemplated hereby and thereby will not result
\nin the loss of, or any encumbrance on, the rights of Seller or any of its
\nSubsidiaries with respect to the Intellectual Property owned or used by them and
\nno claims, order, actions or proceedings are pending or, to the knowledge of
\nSeller, threatened, that seek to question the ownership or scope, cancel or
\nlimit the scope or validity of the Intellectual Property owned or used by Seller
\nor any of its Subsidiaries or the rights of Seller or any of its Subsidiaries
\ntherein, except in each case for such claims, orders, actions, proceedings,
\nlosses, encumbrances or rights as would not have a Material Adverse Effect.<\/p>\n
(b) Seller and each of its Subsidiaries has implemented policies
\nand consistently followed practices regarding the preservation of its
\nProprietary Information (as defined in Section 3.25(d) hereof) from unauthorized
\ndisclosure to third parties and regarding the use and disclosure of its
\nProprietary Information by its employees and contractors.<\/p>\n
(c) Section 3.25(c) of the Seller Disclosure Schedule contains a
\ncomplete and accurate list of all material Intellectual Property held or owned
\nby Seller and its Subsidiaries that has been issued or registered by, or filed
\nwith, any Governmental Authority and all material Intellectual Property licenses
\nto which Seller or any of its Subsidiaries is a party.<\/p>\n
(d) For all purposes of and under this Agreement, (i)
\n“INTELLECTUAL PROPERTY” shall mean intellectual or property of a similar nature
\nincluding without limitation all United States and foreign patents and patent
\napplications, United States and foreign trademark registrations or any analogous
\nrights and applications therefor, United States and foreign copyright
\nregistrations and applications therefor, Proprietary Information and all other
\nintellectual property rights, including, without limitation, inventions,
\nprocesses, formulae, technology, know-how, techniques or other data and
\ninformation, confidential and proprietary trade secrets, computer software,
\ntechnical manuals and documentation used in connection with any of the
\nforegoing, and licenses and rights with respect to the foregoing or property of
\nlike nature, and (ii) “PROPRIETARY INFORMATION” shall mean the trade secrets,
\nproprietary technology, know-how and other confidential information relation to
\nthe business of Seller and its subsidiaries as currently conducted.<\/p>\n
3.26 Assets. The assets held directly or indirectly by the Sold
\nSubsidiaries (after giving effect to the Split), constitute all of the assets of
\nSeller and its Subsidiaries other than the Designated Assets.<\/p>\n
-20-
\n 25<\/p>\n
3.27 Insurance. Seller and each of its Subsidiaries maintain, and all
\ntimes during the prior three years have maintained, fire and casualty, general
\nliability, business interruption, product liability, and sprinkler and water
\ndamage insurance which it believes to be reasonably prudent for similarly sized
\nand similarly situated businesses. All premiums due and payable under all such
\npolicies and bonds have been paid, Seller and each of its Subsidiaries is
\notherwise in material compliance with the terms of such policies and bonds and,
\nto the knowledge of Seller, there is no threatened termination of, or material
\npremium increase with respect to, any of such policies.<\/p>\n
ARTICLE IV
\n REPRESENTATIONS AND WARRANTIES OF PURCHASER<\/p>\n
Purchaser hereby represents and warrants to Seller, subject to the
\nexceptions and qualifications set forth or disclosed in the disclosure letter
\ndelivered by Purchaser to Seller, dated as of the date hereof (the “PURCHASER
\nDISCLOSURE SCHEDULE”), as follows:<\/p>\n
4.1 Organization; Good Standing. Purchaser is a corporation duly
\norganized, validly existing and in good standing under the laws of the
\njurisdiction of its incorporation, with the corporate power and authority to
\nown, lease and operate its assets and property and to carry on its business as
\nnow being conducted and as proposed to be conducted, and is duly qualified to do
\nbusiness and in good standing as a foreign corporation in each jurisdiction in
\nwhich the failure to be so qualified would not reasonably be expected to have a
\nmaterial adverse effect on, or materially delay, the ability of Purchaser or
\nSeller to consummate the transactions contemplated by this Agreement.<\/p>\n
4.2 Charter Documents. Purchaser has delivered to Seller a true and
\ncorrect copy of the organizational documents of Purchaser, each as amended to
\ndate and in effect as of the date hereof, and each such instrument is in full
\nforce and effect. Purchaser is not in violation of any of the provisions of its
\norganizational documents.<\/p>\n
4.3 Authority. Purchaser has all requisite corporate power and authority
\nto enter into this Agreement, to perform its obligations hereunder and to
\nconsummate the transactions contemplated hereby. The execution and delivery of
\nthis Agreement by Purchaser, and the performance by Purchaser of its obligations
\nhereunder and the consummation by Purchaser of the transactions contemplated
\nhereby, have been duly authorized by all necessary corporate action on the part
\nof Purchaser. No vote of the holders of the outstanding shares of capital stock
\nof Purchaser is required to approve this Agreement or the transactions
\ncontemplated hereby. This Agreement has been duly executed and delivered by
\nPurchaser and, assuming the due authorization, execution and delivery by Seller,
\nconstitutes the valid and binding obligations of Purchaser, enforceable in
\naccordance with their respective terms, subject to (i) the effect of any
\napplicable laws of general application relating to bankruptcy, reorganization,
\ninsolvency, moratorium or other similar laws affecting creditors’ rights and the
\nrelief of debtors generally, and (ii) the effect of rules of law and general
\nprinciples of equity, including, without limitation, rules of law and general
\nprinciples of equity governing specific performance, injunctive relief and other
\nequitable remedies (regardless of whether such enforceability is considered in a
\nproceeding in equity or at law).<\/p>\n
-21-
\n 26<\/p>\n
4.4 Conflicts. The execution and delivery of this Agreement by Purchaser
\ndoes not, and the performance by Purchaser of its obligations hereunder the
\nconsummation by Purchaser of the transactions contemplated hereby will not, (i)
\nconflict with or violate the organizational documents of Purchaser, (ii) subject
\ncompliance with the requirements set forth in Section 4.5 hereof, conflict with
\nor violate any Law, rule, regulation, order, judgment or decree applicable to
\nPurchaser or by which Purchaser or its assets and properties are bound or
\naffected, or (iii) result in any breach of, or constitute a default (or an event
\nthat with notice or lapse of time or both would become a default) under, or
\nimpair the rights of Purchaser under, or alter the rights or obligations of any
\nthird party under, or give to others any rights of termination, amendment,
\nacceleration or cancellation of, or result in the creation of a Lien on any of
\nthe assets or properties of Purchaser pursuant to, any note, bond, mortgage,
\nindenture, contract, agreement, lease, license, permit, franchise or other
\ninstrument or obligation to which Purchaser is a party or by which Purchaser or
\nits assets and properties are bound or affected, except to the extent such
\nconflict, violation, breach, default, impairment or other effect could not, in
\nthe case of clause (ii) or (iii) of this Section 4.4, individually or in the
\naggregate, reasonably be expected to have a material adverse effect on, or
\nmaterially delay, the ability of Purchaser or Seller to consummate the
\ntransactions contemplated by this Agreement.<\/p>\n
4.5 Consents. No consent, approval, order or authorization of, or
\nregistration, declaration or filing with, any Governmental Authority is required
\nby or with respect to Purchaser in connection with the execution and delivery of
\nthis Agreement by Purchaser, or the performance by Seller of its obligations
\nhereunder or the consummation by Seller of the transactions contemplated hereby,
\nexcept for (i) consents, approvals, orders, authorizations, registrations,
\ndeclarations and filings as may be required under the HSR Act or any applicable
\nstate antitrust Laws, (ii) consents, approvals, orders, authorizations,
\nregistrations, declarations and filings as may be required under the Laws of any
\nforeign country, and (iii) such other consents, authorizations, filings,
\napprovals and registrations which, if not obtained or made, would not reasonably
\nbe expected to have a material adverse effect on, or materially delay, the
\nability of Purchaser or Seller to consummate the transactions contemplated
\nhereby.<\/p>\n
4.6 Litigation. There is no Action, suit, proceeding, claim, arbitration
\nor investigation pending against Purchaser or as to which Purchaser has received
\nany notice of assertion, nor to the knowledge of Purchaser, is there any
\nthreatened Action, suit, proceeding, claim, arbitration or investigation pending
\nagainst Purchaser, which could reasonably be expected to have a material adverse
\neffect on Purchaser.<\/p>\n
4.7 Statements; Registration Statement; Proxy Statement. None of the
\ninformation supplied or to be supplied by Purchaser or its Affiliates for
\ninclusion or incorporation by reference in (i) the Registration Statement will,
\nat the time it is declared or ordered effective under the Securities Act,
\ncontain any untrue statement of a material fact or omit to state any material
\nfact required to be stated therein or necessary in order to make the statements
\ntherein, in light of the circumstances under which they were made, not
\nmisleading, or (ii) the Proxy Statement will, on the date the Proxy Statement is
\nfirst mailed to the stockholders of Seller, at the time of the Seller
\nStockholders’ Meeting and at the Closing Date, will contain any untrue statement
\nof a material fact or omit to state any material fact required to be stated
\ntherein or necessary in order to make the statements therein, in light of the
\ncircumstances under which they are made, not false or misleading, or omit to
\nstate any material fact necessary to correct any<\/p>\n
-22-
\n 27<\/p>\n
statement in any earlier communication with respect to the solicitation of
\nproxies for the Seller Stockholders’ Meeting which has become false or
\nmisleading. Notwithstanding the foregoing, Purchaser makes no representation or
\nwarranty with respect to any information supplied by Seller which is contained
\nin the Proxy Statement.<\/p>\n
4.8 Financing. For all purposes of and under this Agreement, the
\nCommitment Letters and the Equity Commitments shall be referred to together as
\nthe “FINANCING AGREEMENTS” and the financing to be provided thereunder shall be
\nreferred to as the “FINANCING.” The aggregate proceeds of Financing are in an
\namount sufficient to consummate the transactions contemplated hereby in
\naccordance with the terms hereof. None of the Commitment Letters or the Equity
\nCommitments has been withdrawn and Purchaser does not know of any facts or
\ncircumstances that may reasonably be expected to result in any of the conditions
\nset forth in the Commitment Letters or the Equity Commitments not being
\nsatisfied.<\/p>\n
4.9 Delaware Law. Purchaser was not immediately, prior to the execution
\nand delivery of this Agreement, an “interested stockholder” of Seller within the
\nmeaning of Section 203 of Delaware Law, and neither Purchaser nor any of its
\nAffiliates beneficially owns any shares of Common Stock of Seller on the date
\nhereof.<\/p>\n
4.10 Newly Organized. Purchaser was formed solely for the purpose of
\nengaging in the transactions contemplated by this Agreement and has engaged in
\nno other business activities.<\/p>\n
4.11 Related Agreements. Purchaser has delivered to Seller true and
\ncorrect copies of any and all contracts and agreements between VERITAS and
\nPurchaser and their respective Affiliates.<\/p>\n
4.12 Solvency. Immediately after giving effect to the transactions
\ncontemplated by this Agreement and the closing of the Financing in order to
\neffect the transactions contemplated by this Agreement, the Sold Subsidiaries
\nand their respective Subsidiaries shall be able to pay their debts as they
\nbecome due in the ordinary course of business and shall own assets having a
\npresent fair saleable value greater than the combined stated liabilities and
\nidentified contingent liabilities of such entities. Immediately after giving
\neffect to the transactions contemplated by this Agreement and the closing of the
\nFinancing to be obtained in order to effect the transactions contemplated by
\nthis Agreement, the Sold Subsidiaries and their respective Subsidiaries shall
\nhave adequate capital to carry on their businesses. No transfer of property is
\nbeing made and no obligation is being incurred in connection with the
\ntransactions contemplated by this Agreement and the closing of any Financing to
\nbe obtained in order to effect the transactions contemplated by this Agreement
\nwith the intent to hinder, delay or defraud either present or future creditors
\nof Purchaser, Seller, the Sold Subsidiaries or any of their respective
\nSubsidiaries.<\/p>\n
4.13 No Amendment to VERITAS Merger Agreement. Seller shall not, without
\nthe prior written consent of Purchaser, amend, modify, supplement, mutually
\nterminate or waive any term or condition set forth in the OD Documents, as in
\neffect as of the date hereof.<\/p>\n
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\n 28<\/p>\n
ARTICLE V
\n CONDUCT PRIOR TO CLOSING<\/p>\n
5.1 Conduct of Business. Except (i) as set forth in Section 5.1 of the
\nSeller Disclosure Schedule, (ii) to the extent that Purchaser shall otherwise
\nconsent in writing, and (iii) to the extent contemplated by the OD Documents as
\nin effect on the date hereof, or for the sale of all or a portion of the
\nDesignated Assets, at all times during the period commencing with the execution
\nand delivery hereof and continuing until the earlier of the termination of this
\nAgreement pursuant to the terms hereof or the Closing, Seller shall, and shall
\ncause each of its Subsidiaries to, (a) carry on its business diligently and in
\nthe usual, regular and ordinary course, in substantially the same manner as
\nheretofore conducted and in compliance with all applicable Laws, (b) pay or
\nperform its material obligations when due, and (c) use its commercially
\nreasonable efforts, consistent with past practices and policies, to preserve
\nintact its present business organization, keep available the services of its
\npresent officers and employees and preserve its relationships with customers,
\nsuppliers, distributors, licensors, licensees and others with which it has
\nbusiness dealings. In furtherance of the foregoing and subject to applicable
\nLaw, Seller shall confer with Purchaser, as promptly as practicable, prior to
\ntaking any material actions or making any material management decisions with
\nrespect to the conduct of its business and the business of its Subsidiaries.<\/p>\n
5.2 Restrictions on Conduct of Business. Without limiting the generality
\nof the terms of Section 5.1 hereof, except (i) as set forth in Section 5.2 of
\nthe Seller Disclosure Schedule or as required by the terms hereof, or (ii) to
\nthe extent that Purchaser shall otherwise consent in writing (which, in the case
\nof Section 5.2(q) hereof, shall not be unreasonably withheld), or (iii) to the
\nextent contemplated by the OD Documents as in effect on the date hereof, or for
\nthe sale of all or a portion of the Designated Assets, at all times during the
\nperiod commencing with the execution and delivery hereof and continuing until
\nthe earlier of the termination of this Agreement pursuant to the terms hereof or
\nthe Closing, Seller shall not do any of the following, or permit its
\nSubsidiaries to do any of the following:<\/p>\n
(a) except as required by applicable Law, waive any stock
\nrepurchase rights, accelerate, amend or change the period of exercisability of
\noptions or restricted stock, or reprice options granted under any employee,
\nconsultant or director stock plans or authorize cash payments in exchange for
\nany options granted under any of such plans;<\/p>\n
(b) enter into any material partnership arrangements, joint
\ndevelopment agreements or strategic alliances, other than in the ordinary course
\nof business consistent with past practice;<\/p>\n
(c) (i) increase the compensation or fringe benefits of any
\npresent or former director, officer or employee of Seller or its Subsidiaries
\n(except for increases in salary or wages in the ordinary course of business
\nconsistent with past practice), (ii) grant any severance or termination pay to
\nany present or former director, officer or employee of Seller or its
\nSubsidiaries (except for the payment of severance or termination pay in the
\nordinary course of business consistent with past practice), or (iii) establish,
\nadopt, enter into, amend or terminate any Seller Plan or any plan, agreement,
\nprogram, policy, trust, fund or other arrangement that<\/p>\n
-24-
\n 29<\/p>\n
would be a Seller Plan if it were in existence as of the date of this Agreement,
\nexcept as required by applicable Law;<\/p>\n
(d) issue, deliver, sell, authorize, pledge or otherwise
\nencumber, or propose any of the foregoing with respect to, any shares of capital
\nstock or any securities convertible into, or exercisable or exchangeable for,
\nshares of capital stock of any of its Subsidiaries, or subscriptions, rights,
\nwarrants or options to acquire any shares of capital stock or any securities
\nconvertible into, or exercisable or exchangeable for, shares of capital stock of
\nany of its Subsidiaries, or enter into other agreements or commitments of any
\ncharacter obligating it to issue any such shares of capital stock of any of its
\nSubsidiaries, or securities convertible into, or exercisable or exchangeable
\nfor, shares of capital stock of any of its Subsidiaries;<\/p>\n
(e) cause, permit or propose any amendments to any charter
\ndocument or bylaws (or similar governing instruments) of Seller or any of its
\nSubsidiaries;<\/p>\n
(f) acquire or agree to acquire by merging or consolidating with,
\nor by purchasing any equity interest in or a material portion of the assets of,
\nor by any other manner, any business or any corporation, limited liability
\ncompany, general or limited partnership, joint venture, association, business
\ntrust or other business enterprise or entity, or otherwise acquire or agree to
\nacquire any assets having a value exceeding $5,000,000 in the aggregate or which
\nare otherwise material, individually or in the aggregate, to the business of
\nSeller and its Subsidiaries to be included in the Sold Subsidiaries;<\/p>\n
(g) adopt a plan of merger, complete or partial liquidation,
\ndissolution, consolidation, restructuring, recapitalization or other
\nreorganization;<\/p>\n
(h) except as required by applicable Law, adopt or amend any
\nemployee benefit plan or employee stock purchase or employee stock option plan,
\nor enter into any employment contract or collective bargaining agreement (other
\nthan offer letters and letter agreements entered into in the ordinary course of
\nbusiness consistent with past practice with employees who are terminable “at
\nwill”), pay any special bonus or special remuneration to any director or
\nemployee other than in the ordinary course of business consistent with past
\npractice, or increase the salaries or wage rates or fringe benefits (including
\nrights to severance or indemnification) of its officers;<\/p>\n
(i) except in the ordinary course of business consistent with
\npast practice, modify, amend or terminate any material contract or agreement to
\nwhich Seller or any of its Subsidiaries is a party, or waive, delay the exercise
\nof, release or assign any material rights or claims thereunder;<\/p>\n
(j) sell, lease, license, mortgage or otherwise encumber or
\nsubject to any Lien or otherwise dispose of any of its properties or assets,
\nother than (i) the sale or transfer of any Designated Assets (but not including
\nshares of VERITAS capital stock), or (ii) any such properties or assets the
\nvalue of which do not exceed $5,000,000 individually and $10,000,000 in the
\naggregate, except sales of inventory in the ordinary course of business
\nconsistent with past practice; provided, that Seller may divest any of the
\nPrivate Securities without the consent of<\/p>\n
-25-
\n 30<\/p>\n
Purchaser if required to do so on an involuntary basis pursuant to any merger,
\nsecurities purchase or other similar type of agreement;<\/p>\n
(k) (i) incur any Indebtedness or guarantee any such Indebtedness
\nof another person, issue or sell any debt securities or warrants or other rights
\nto acquire any debt securities of Seller or any of its Subsidiaries, guarantee
\nany debt securities of another person, enter into any “keep well” or other
\nagreement to maintain any financial statement condition of another person or
\nenter into any arrangement having the economic effect of any of the foregoing,
\nexcept for endorsements and guarantees for collection, short-term borrowings and
\nlease obligations, in each case incurred in the ordinary course of business
\nconsistent with past practice, or (ii) make any loans, advances or capital
\ncontributions to, or investment in, any other person, other than to Seller or
\nany direct or indirect wholly-owed Subsidiary of Seller;<\/p>\n
(l) fail in any material respect to make any capital expenditures
\nin the amounts budgeted and at the times contemplated therefor in Seller’s
\nannual capital expenditures budget for fiscal year 2000 previously provided to
\nPurchaser, or expend funds for unbudgeted capital expenditures in an amount
\ngreater than $5,000,000;<\/p>\n
(m) pay, discharge or satisfy any claims (including claims of
\nstockholders), liabilities or obligations (absolute, accrued, asserted or
\nunasserted, contingent or otherwise), except for the payment, discharge or
\nsatisfaction of liabilities or obligations in the ordinary course of business
\nconsistent with past practices or in accordance with their terms as in effect on
\nthe date hereof, or waive, release, grant, or transfer any rights of material
\nvalue or modify or change in any material respect any existing license, lease,
\ncontract or other document, other than in the ordinary course of business
\nconsistent with past practice;<\/p>\n
(n) change any financial reporting or material accounting
\nprinciple used by it unless otherwise required by applicable Law or GAAP;<\/p>\n
(o) settle or compromise any litigation (whether or not commenced
\nprior to the date of this Agreement) other than settlements or compromises of
\nlitigation where the amount paid (after giving effect to insurance proceeds
\nactually received) in settlement or compromise does not exceed $1,000,000,
\nprovided that the aggregate amount paid in connection with the settlement or
\ncompromise of all such litigation shall not exceed $10,000,000;<\/p>\n
(p) declare, set aside or pay any dividends on, or make any other
\ndistributions in respect of, any of its capital stock, other than dividends and
\ndistributions by a direct or indirect wholly owned subsidiary of Seller to its
\nparent (i) split, combine or reclassify any of its capital stock or issue or
\nauthorize the issuance of any other securities in respect of, in lieu of or in
\nsubstitution for shares of its capital stock, or (ii) purchase, redeem or
\notherwise acquire any shares of capital stock of Seller or any of its
\nsubsidiaries or any other securities thereof or any rights, warrants or options
\nto acquire any such shares or other securities; or<\/p>\n
(q) make, or permit to be made, without the prior written consent
\nof Purchaser any material Tax election which would affect the Sold Subsidiaries
\nor any of their respective Subsidiaries.<\/p>\n
-26-
\n 31<\/p>\n
(r) agree in writing or otherwise to take any of the actions
\ndescribed in Section 5.2(a) through Section 5.2(q) hereof, inclusive.<\/p>\n
ARTICLE VI
\n ADDITIONAL AGREEMENTS<\/p>\n
6.1 Registration Statement; Proxy Statement; Other Filings.<\/p>\n
(a) As promptly as practicable after the execution and delivery
\nof this Agreement, (i) Seller (in cooperation with Purchaser and the other party
\nor parties to the OD Documents) shall prepare and file with the SEC a proxy
\nstatement\/prospectus to be sent to the stockholders of Seller in connection with
\nthe meeting of the stockholders of Seller to consider the approval of this
\nAgreement, the OD Documents and the transactions contemplated hereby and thereby
\n(such proxy statement\/prospectus being referred to herein as the “PROXY
\nSTATEMENT” and such meeting of the stockholders of Seller being referred to
\nherein as the “SELLER STOCKHOLDERS’ MEETING”), and (ii) Seller shall cooperate
\nwith Purchaser and the other party or parties to the OD Documents in the
\npreparation and filing a registration statement on Form S-4 (the “REGISTRATION
\nSTATEMENT”) to be filed with the SEC in connection with the transactions
\ncontemplated by the OD Documents. Seller shall respond to any comments of the
\nSEC with respect to the Registration Statement or the Proxy Statement, shall use
\nits commercially reasonable efforts to have the Registration Statement declared
\neffective under the Securities Act as promptly as practicable after such filing
\nand shall cause the Proxy Statement to be mailed to its stockholders at the
\nearliest practicable time. As promptly as practicable after the execution and
\ndelivery of this Agreement, Seller shall prepare and file any other filings
\nrequired under the Exchange Act, the Securities Act or any other federal,
\nforeign or state “blue sky” securities Laws relating to the transactions
\ncontemplated hereby (collectively, the “OTHER FILINGS”). Seller shall promptly
\nnotify Purchaser upon the receipt of any comments from the SEC or its staff, and
\nof any request by the SEC or its staff or any other government officials for
\namendments or supplements to the Registration Statement, the Proxy Statement or
\nany Other Filing, or for additional information, and shall supply the other with
\ncopies of all correspondence between such party or any of its representatives,
\non the one hand, and the SEC, or its staff or any other government officials, on
\nthe other hand, with respect to the Registration Statement, the Proxy Statement
\nor any Other Filing. The Proxy Statement, the Registration Statement and the
\nOther Filings shall comply in all material respects with all requirements of
\napplicable Law and the rules and regulations promulgated thereunder. Whenever
\nany event occurs which is required to be set forth in an amendment or supplement
\nto the Proxy Statement, the Registration Statement or any Other Filing, Seller
\nor Purchaser, as the case may be, shall promptly inform the other party of such
\noccurrence and cooperate in filing with the SEC or its staff or any other
\ngovernment officials, and\/or mailing to stockholders of Seller, such amendment
\nor supplement.<\/p>\n
(b) Subject to Section 6.2(c) hereof, the Proxy Statement
\nshall also include the recommendation of the Board of Directors of Seller in
\nfavor of the approval of this Agreement, the OD Documents and the transactions
\ncontemplated hereby and thereby.<\/p>\n
6.2 Meeting of Seller Stockholders.<\/p>\n
-27-
\n 32<\/p>\n
(a) Subject to the terms of Section 6.2(c) hereof, promptly after
\nthe date hereof and in consultation with Purchaser, Seller shall take all action
\nnecessary in accordance with Delaware Law and its Certificate of Incorporation
\nand Bylaws to convene the Seller Stockholders’ Meeting, to be held as promptly
\nas practicable, for the purpose of voting upon this Agreement, the OD Documents
\nand the transactions contemplated hereby and thereby. Subject to the terms of
\nSection 6.2(c) hereof, Seller shall solicit proxies from its stockholders in
\nfavor of the approval of this Agreement, the OD Documents and the transactions
\ncontemplated hereby and thereby, and shall take all other action necessary or
\nadvisable to secure the Required Stockholder Approval.<\/p>\n
(b) Subject to the terms of Section 6.2(c) hereof, (i) the Board
\nof Directors of Seller shall recommend that Seller’s stockholders vote in favor
\nof and approve this Agreement, the OD Documents and the transactions
\ncontemplated hereby and thereby at the Seller Stockholders’ Meeting, (ii) the
\nProxy Statement shall include a statement to the effect that the Board of
\nDirectors of Seller has recommended that Seller’s stockholders vote in favor of
\nand approve this Agreement, the OD Documents and the transactions contemplated
\nhereby and thereby, and (iii) neither the Board of Directors of Seller nor any
\ncommittee thereof shall withdraw, amend or modify, or propose or resolve to
\nwithdraw, amend or modify in a manner adverse to Purchaser, the recommendation
\nof the Board of Directors of Seller that Seller’s stockholders vote in favor of
\nand approve this Agreement, the OD Documents and the transactions contemplated
\nhereby and thereby.<\/p>\n
(c) Notwithstanding the foregoing or anything to the contrary set
\nforth in this Agreement, nothing in this Agreement shall prevent the Board of
\nDirectors of Seller from withdrawing, amending or modifying its recommendation
\nin favor of this Agreement and the transactions contemplated hereby if (i)
\nSeller receives a Seller Superior Offer (as defined below) and such Seller
\nSuperior Offer is not withdrawn, (ii) neither Seller nor any of its agents or
\nrepresentatives shall have violated any of the restrictions set forth in Section
\n6.5(a) hereof, and (iii) the Board of Directors of Seller concludes in good
\nfaith, after consultation with its outside counsel, that, in light of such
\nSeller Superior Offer, the withdrawal, amendment or modification of such
\nrecommendation is necessary in order for the Board of Directors of Seller to
\ncomply with its fiduciary obligations to the stockholders of Seller under
\napplicable Law. For all purposes of and under this Agreement, the term “SELLER
\nSUPERIOR OFFER” shall mean a bona fide written offer made by a third party to
\nconsummate any of the following transactions: (a) a merger, consolidation,
\nbusiness combination, recapitalization, liquidation, dissolution or similar
\ntransaction involving Seller, pursuant to which the stockholders of Seller
\nimmediately preceding such transaction would hold less than fifty percent (50%)
\nof the equity interest in the surviving or resulting entity of such transaction
\n(or the ultimate parent entity thereof); (b) a sale or other disposition by
\nSeller of assets (excluding inventory and used equipment sold in the ordinary
\ncourse of business) representing all or substantially all of Seller’s
\nconsolidated assets immediately prior to such sale, (c) a sale or other
\ndisposition by Seller of all or more than ninety-five percent (95%) of the
\nassets to be held (directly or indirectly) by the Sold Subsidiaries after giving
\neffect to the Split, or (d) the acquisition by any person or group (including by
\nway of a tender offer or an exchange offer or issuance by Seller), directly or
\nindirectly, of beneficial ownership or a right to acquire beneficial ownership
\nof shares representing in excess of fifty percent (50%) of the voting power of
\nthe then outstanding shares of capital stock of Seller, in<\/p>\n
-28-
\n 33<\/p>\n
each case on terms that the Board of Directors of Seller determines, in its
\nreasonable judgment (after consultation with its financial advisor and after
\ntaking into account all aspects of the proposal and the person making the
\nproposal and any proposed changes to this Agreement that may be proposed by
\nPurchaser in response to such Seller Superior Offer) to be more favorable to the
\nstockholders of Seller, from a financial point of view, than, (i) in the case of
\na Seller Superior Offer of the type referred to in clauses (a), (b) or (d), this
\nAgreement and the OD Documents and the transactions contemplated hereby and
\nthereby and (ii) in the case of a Seller Superior Offer of the type referred to
\nin clause (c), this Agreement and the transactions contemplated hereby;
\nprovided, however, that any such offer shall not be deemed to be a “Seller
\nSuperior Offer” if any financing required to consummate the transaction
\ncontemplated by such offer is not committed and is not likely in the judgment of
\nSeller’s Board of Directors to be obtained by such third party on a timely
\nbasis. Notwithstanding the foregoing or anything to the contrary set forth in
\nthis Agreement, except for a mutual termination as provided for in Section 4.13
\nhereof, nothing in this Agreement shall prevent the Board of Directors of Seller
\nfrom withdrawing, amending or modifying its recommendation in favor of the OD
\nDocuments, or terminating the OD Documents in accordance with its terms.<\/p>\n
6.3 Access to Information.<\/p>\n
(a) Seller shall afford Purchaser and its accountants, counsel
\nand other representatives (including potential financing sources), reasonable
\naccess, during normal business hours, to the properties, books, records and
\npersonnel of Seller and its Subsidiaries at any time prior to the Closing in
\norder to enable Purchaser obtain all information concerning the business, assets
\nand properties, results of operations and personnel of Seller and its
\nSubsidiaries as Purchaser may reasonably request. No information or knowledge
\nobtained in the foregoing investigation by Purchaser pursuant to this Section
\n6.3 shall affect or be deemed to modify any representation or warranty contained
\nherein or the conditions to the obligations of Seller and Purchaser to
\nconsummate the transactions contemplated hereby.<\/p>\n
(b) Seller shall provide, and shall cause its Subsidiaries and
\nits and their respective officers and employees to provide, all necessary
\ncooperation in connection with the arrangement of the Financing and related
\nmatters, including, without limitation, the execution and delivery of any
\ncommitment letters, underwriting or placement agreements, pledge and security
\ndocuments, other definitive financing documents, or other requested certificates
\nor documents, including a certificate of the chief financial officer of Seller
\nwith respect to solvency matters, as may be requested by Purchaser, provided,
\nhowever, that such letters, agreements or documents expressly provide that, from
\nand after consummation of the transactions contemplated by this Agreement,
\nSeller shall have no Liability thereunder and the other parties thereto shall
\nlook solely to Purchaser in respect of any obligations of Seller thereunder.<\/p>\n
6.4 Confidentiality. Seller and Purchaser acknowledge that they have
\npreviously entered into a Confidentiality Agreement (the “CONFIDENTIALITY
\nAGREEMENT”), which shall continue in full force and effect in accordance with
\nits terms.<\/p>\n
6.5 No Solicitation.<\/p>\n
-29-
\n 34<\/p>\n
(a) From and after the date of this Agreement until the earlier
\nto occur of the Closing and termination of this Agreement pursuant to Section
\n10.1 hereof, Seller and its Subsidiaries shall not, and shall cause their
\nrespective officers, directors, affiliates or employees or any investment
\nbanker, attorney or other advisor or representative retained by any of them not
\nto, directly or indirectly (i) solicit, initiate, encourage or induce the
\nmaking, submission or announcement of any Seller Acquisition Proposal (as
\ndefined in Section 6.5(b) hereof), (ii) participate in any discussions or
\nnegotiations regarding, or furnish to any person any information with respect
\nto, or take any other action to facilitate any inquiries or the making of any
\nproposal that constitutes or may reasonably be expected to lead to, any Seller
\nAcquisition Proposal, (iii) engage in discussions with any person with respect
\nto any Seller Acquisition Proposal, except as to the existence of the terms of
\nthis Section 6.5, (iv) subject to the terms of Section 6.2(c) hereof, approve,
\nendorse or recommend any Seller Acquisition Proposal, or (v) enter into any
\nletter of intent or similar document or any contract, agreement or commitment
\ncontemplating or otherwise relating to any Seller Acquisition Transaction (as
\ndefined in Section 6.5(b) hereof); provided, however, that until the date on
\nwhich this Agreement is approved by the requisite vote of the stockholders of
\nSeller, the terms of this Section 6.5(a) shall not prohibit Seller from
\nfurnishing information regarding Seller and its Subsidiaries to, entering into a
\nconfidentiality or non-disclosure agreement with, or entering into discussions
\nwith, any person or group in response to a Seller Superior Offer submitted by
\nsuch person or group (and not withdrawn) if (a) Seller has not violated any of
\nthe restrictions set forth in this Section 6.5(a), (b) the Board of Directors of
\nSeller concludes in good faith, after consultation with its outside legal
\ncounsel, that such action is reasonably necessary in order for the Board of
\nDirectors of Seller to comply with its fiduciary obligations to the stockholders
\nof Seller under applicable Law, (c) Seller receives from such person or group an
\nexecuted confidentiality or non-disclosure agreement containing customary
\nlimitations on the use and disclosure of all non-public written and oral
\ninformation furnished to such person or group by or on behalf of Seller and
\ncontaining terms no less favorable to the disclosing party than the terms of the
\nConfidentiality Agreement (including with respect to any standstill
\narrangements, which may not be waived by Seller unless the standstill
\narrangements in the Confidentiality Agreement are waived), and (d) prior to
\nfurnishing any such non-public information to such person or group or entering
\ninto negotiations or discussions, Seller notifies Purchaser promptly of such
\ninquiries, proposals or offers received by, any such information requested from,
\nor any such discussions or negotiations sought to be initiated or continued
\nwith, any of its representatives indicating, in connection with such notice, the
\nname of the person and the terms and conditions of any inquiries, proposals or
\noffers, and furnishes such non-public information to Purchaser to the extent
\nsuch information has not been previously furnished to Purchaser. Seller and its
\nSubsidiaries shall (and shall cause their respective officers, directors,
\naffiliates, employees, investment bankers, attorneys and representatives to)
\nimmediately cease any and all existing activities, discussions or negotiations
\nwith any parties conducted heretofore with respect to any Seller Acquisition
\nProposal.<\/p>\n
(b) For all purposes of and under this Agreement, the term
\n“SELLER ACQUISITION PROPOSAL” shall mean any offer or proposal relating to any
\nSeller Acquisition Transaction. For all purposes of and under this Agreement,
\n“SELLER ACQUISITION TRANSACTION” shall mean any transaction or series of related
\ntransactions, other than the transactions permitted to be effected under Section
\n5.2 hereof involving: (i) any acquisition or purchase from Seller by any person
\nor “group” (as defined under Section 13(d) of the Exchange Act and the rules and
\nregulations promulgated thereunder) of more than fifteen percent (15%) in
\ninterest of the total outstanding voting securities of Seller, or any tender
\noffer or exchange offer that if consummated would result in any person or
\n“group” (as defined under Section 13(d) of the Exchange Act and the rules and<\/p>\n
-30-
\n 35<\/p>\n
regulations promulgated thereunder) beneficially owning more than fifteen
\npercent (15%) of the total outstanding voting securities of Seller, or any
\nmerger, consolidation, business combination or similar transaction involving
\nSeller pursuant to which the stockholders of Seller immediately preceding such
\ntransaction would hold less than eighty-five percent (85%) of the equity
\ninterests in the surviving or resulting entity of such transaction (or the
\nultimate parent entity thereof); (ii) any sale, lease (other than in the
\nordinary course of business), exchange, transfer, license (other than in the
\nordinary course of business), acquisition or disposition of more than fifteen
\npercent (15%) of the fair market value of the consolidated assets and properties
\nof Seller; (iii) a sale or other disposition by Seller of all or more than
\nfifteen percent (15%) of the assets to be held by the Sold Subsidiaries after
\ngiving effect to the Split; and (iv) the acquisition by any person or group
\n(including by way of a tender offer or exchange offer or issuance by Seller),
\ndirectly or indirectly, of beneficial ownership or a right to acquire beneficial
\nownership of shares representing in excess of fifteen percent (15%) of the
\nvoting power of the then outstanding shares of capital stock of Seller.<\/p>\n
6.6 Public Disclosure. Purchaser and Seller shall consult with each
\nother and agree before issuing any press release or otherwise making any public
\nstatement with respect to this Agreement, and shall not issue any such press
\nrelease or make any such public statement prior to such agreement, except as may
\nbe required by applicable Law or Seller’s listing agreement with The New York
\nStock Exchange, Inc., in which case reasonable efforts to consult with the other
\nparty shall be made prior to such release or public statement.<\/p>\n
6.7 Legal Requirements. Purchaser and Seller shall take all reasonable
\nactions necessary or desirable to comply promptly with all legal requirements
\nwhich may be imposed on them with respect to the consummation of the
\ntransactions contemplated by this Agreement (including, without limitation,
\nfurnishing all information required in connection with approvals of or filings
\nwith any Governmental Authority, and prompt resolution of any litigation
\nprompted hereby), and shall promptly cooperate with, and furnish information to,
\nthe other party hereto to the extent necessary in connection with any such
\nrequirements imposed upon any of them or their respective Subsidiaries in
\nconnection with the consummation of the transactions contemplated by this
\nAgreement.<\/p>\n
6.8 Notification of Certain Matters. Purchaser shall give prompt notice
\nto Seller, and Seller shall give prompt notice to Purchaser, of the occurrence,
\nor failure to occur, of any event, which occurrence or failure to occur would be
\nreasonably likely to cause (i) any representation or warranty contained in this
\nAgreement to be untrue or inaccurate at the Closing, such that the conditions
\nset forth in Section 9.2(a) or Section 9.3(a) hereof, as the case may be, would
\nnot be satisfied or fulfilled as a result thereof, or (ii) any material failure
\nof Purchaser or Seller, as the case may be, or of any officer, director,
\nemployee or agent thereof, to comply with or satisfy any covenant, condition or
\nagreement to be complied with or satisfied by it under this Agreement.
\nNotwithstanding the foregoing, the delivery of any notice pursuant to this
\nSection 6.8 shall not limit or otherwise affect the rights and remedies
\navailable hereunder to the party receiving such notice.<\/p>\n
-31-
\n 36<\/p>\n
6.9 Commercially Reasonable Efforts and Further Assurances. Subject to
\nthe respective rights and obligations of Purchaser and Seller under this
\nAgreement, each of Purchaser and Seller shall use its respective commercially
\nreasonable efforts to effectuate the transactions contemplated hereby, and to
\nfulfill and cause to be fulfilled the conditions to Closing under this
\nAgreement. Each of Purchaser and Seller, at the reasonable request of the other
\nparty hereto, shall execute and deliver such other instruments and do and
\nperform such other acts and things as may be necessary or desirable for
\neffecting completely the consummation of the transactions contemplated hereby.<\/p>\n
6.10 Indemnification.<\/p>\n
(a) From and after the Closing, Purchaser and the Sold
\nSubsidiaries shall fulfill and honor in all respects the obligations of Seller
\npursuant to any indemnification agreements (substantially in the form delivered
\nto Purchaser prior to the date hereof) between Seller, the Sold Subsidiaries and
\ntheir respective directors and officers in effect immediately prior to the
\nClosing and the Split (the “INDEMNIFIED PARTIES”) and any indemnification
\nprovisions under Seller’s charter documents as in effect on the date hereof. The
\norganizational documents of Purchaser shall contain provisions with respect to
\nexculpation and indemnification that are at least as favorable to the
\nIndemnified Parties as those contained in Seller’s organizational documents as
\nin effect on the date hereof, which provisions shall not be amended, repealed or
\notherwise modified for a period of six (6) years from the Closing Date in any
\nmanner that would adversely affect the rights thereunder of individuals who,
\nimmediately prior to the Closing, were directors, officers, employees or agents
\nof Seller or the Sold Subsidiaries, unless such modification is required by
\napplicable Law.<\/p>\n
(b) In the event that Purchaser or any of its successors or
\nassigns (i) consolidates with or merges into any other person and shall not be
\nthe continuing or surviving corporation or entity of such consolidation or
\nmerger, or (ii) transfers all or substantially all of its properties and assets
\nto any person in a single transaction or a series of transactions, then, and in
\neach such case, Purchaser shall make or cause to be made proper provision so
\nthat the successors and assigns of Purchaser assume the indemnification
\nobligations of Purchaser and the Sold Subsidiaries under this Section 6.10 for
\nthe benefit of the Indemnified Parties.<\/p>\n
(c) The provisions of this Section 6.10 are (i) intended to be
\nfor the benefit of, and will be enforceable by, each of the Indemnified Parties,
\nand (ii) in addition to, and not in substitution for, any other rights to
\nindemnification or contribution that any such person may have by contract or
\notherwise.<\/p>\n
(d) For a period of six (6) years following the Closing Date,
\nPurchaser shall use its best efforts to maintain in effect the directors’ and
\nofficers’ liability insurance policies maintained by Seller; provided, however,
\nthat in no event shall Purchaser be required to expend in any one year in excess
\nof one hundred and fifty percent (150%) of the annual premium currently paid by
\nSeller for such coverage.<\/p>\n
6.11 Regulatory Filings; Reasonable Efforts. As soon as may be
\nreasonably practicable following the execution and delivery of this Agreement,
\nSeller and Purchaser each shall file with the FTC and DOJ Notification and
\nReport Forms relating to the transactions<\/p>\n
-32-
\n 37<\/p>\n
contemplated hereby as required by the HSR Act, as well as comparable pre-merger
\nnotification forms required by the merger notification or control laws and
\nregulations of any applicable jurisdiction, as agreed to by Seller and
\nPurchaser. Seller and Purchaser each shall promptly (i) supply the other with
\nany information which may be required in order to effectuate such filings, and
\n(ii) supply any additional information which reasonably may be required by the
\nFTC, the DOJ or the competition or merger control authorities of any other
\njurisdiction and which Seller and Purchaser may reasonably deem appropriate.<\/p>\n
6.12 Use of Names. Seller acknowledges that from and after the Closing,
\nthe name “Seagate” and all similar or related names, marks and logos (all of
\nsuch names, marks and logos being referred to herein as the “SELLER NAMES”)
\nshall be owned by the Sold Subsidiaries, that neither Seller nor any of its
\nAffiliates shall have any rights in the Seller Names, and that neither Seller
\nnor any of its Affiliates will be entitled to contest the ownership or validity
\nor any rights of Purchaser, the Sold Subsidiaries or any of their respective
\nSubsidiaries in or to the Seller Names.<\/p>\n
6.13 Debt Offer. Subject to the terms and conditions of this Agreement,
\nSeller shall commence an irrevocable tender offer (the “DEBT OFFER”) to purchase
\nall of the principal amount of the Debentures. The obligations of Seller (i) to
\ncommence the Debt Offer and (ii) to accept for payment, and pay for, any
\nsecurities tendered pursuant to the Debt Offer, shall be subject to customary
\nconditions and be conditioned upon closing of the transactions contemplated
\nhereby and the OD Documents (any of which may be waived by Seller in its sole
\ndiscretion). If fewer than one hundred percent (100%) of the Debentures are
\npurchased pursuant to the Debt Offer, then at the Closing Purchaser shall, (i)
\nin accordance with the terms and provisions of Section 8.01 and Section 9.01 of
\nthe Indenture, assume the Debentures and enter into a Supplemental Indenture in
\naccordance with such Section 8.01 and Section 9.01, (ii) give an irrevocable
\nnotice of redemption pursuant to Section 11.01 of the Indenture to the Trustee
\nthereunder and each holder of a Debenture thereunder, specifying a “Redemption
\nDate” thirty one (31) days after the Closing and other matters specified in
\nSection 11.08 of the Indenture, and (iii) deposit the principal amount of the
\n“Redemption Price” with the Trustee under the Indenture.<\/p>\n
6.14 Commitment Letters; Rolled Options. Purchaser shall promptly
\nforward Seller’s counsel a copy of all credit documentation prepared pursuant to
\nthe Commitment Letters. In the event that one or more of the lenders under the
\nCommitment Letters withdraws its Commitment Letter (or commitment thereunder) or
\ninvokes a condition that would prevent the Closing from occurring, Purchaser
\nshall promptly notify Seller thereof. In the event that Purchaser invokes the
\ncondition set forth in Section 9.3(c) hereof, or one or more lenders withdraws
\nits commitment, Purchaser shall use all commercially reasonable efforts to enter
\ninto contracts with one or more substitute lenders designated by Purchaser and
\nreasonably acceptable to Seller (“SUBSTITUTE LENDERS”), provided, however, that
\nPurchaser shall be required to enter into such contracts with one or more
\nSubstitute Lenders only if the economic terms and other conditions offered by
\nsuch Substitute Lenders are no less favorable than those set forth in the
\nCommitment Letters. From and after the date hereof until the Closing, Purchaser
\nshall not amend, modify or supplement, or permit the amendment, modification or
\nsupplementation of, the Roll Agreement without Seller’s prior written consent.<\/p>\n
6.15 Transaction Expenses. No later than fifteen (15) calendar days
\nprior to the Closing Seller shall deliver to Purchaser final invoices from
\nSeller’s investment bankers (including their counsel, if any), attorneys,
\naccountants and other advisors with respect to the transactions contemplated
\nhereby, together with a statement from each such person to the effect that (i)
\nthe amounts shown due and owing therein constitute a “final” bill, and (ii)
\nafter payment in full of the amounts indicated therein, each such person will
\nnot look to Purchaser, Seller or<\/p>\n
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\n 38<\/p>\n
any of their Affiliates or any party to the OD Documents for the payment of
\nfurther amounts with respect to the transactions contemplated hereby or the OD
\nDocuments.<\/p>\n
6.16 Non-Assignable Assets. Nothing in this Agreement shall be construed
\nas an attempt or agreement to assign any asset, contract, lease, permit, license
\nor other right which would otherwise be included in the assets transferred
\npursuant to the Split, but which is by its terms non-assignable without the
\nconsent of the other party or parties thereto, unless such consent shall have
\nbeen given (the “NON-ASSIGNABLE ASSETS”). Seller agrees to use commercially
\nreasonably efforts before the Closing to obtain such consent or consents.
\nFollowing the Closing and until such time as the Non-Assignable Assets may be
\nproperly assigned to Purchaser, such Non-Assignable Assets shall be held in
\ntrust for the benefit of Purchaser, the covenants and obligations thereunder
\nshall be performed by Purchaser, and all benefits and obligations existing
\nthereunder shall be for the account of Purchaser. Following the Closing, Seller
\nauthorizes Purchaser, to the extent permitted by applicable Law and the terms of
\nthe Non-Assignable Assets, to perform all of the obligations and receive all of
\nthe benefits under the Non-Assignable Assets, and appoints Purchaser as its
\nattorney-in-fact to act in its name and on its behalf (and on behalf of its
\nAffiliates) with respect thereto.<\/p>\n
ARTICLE VII
\n EMPLOYEE MATTERS<\/p>\n
7.1 Employee Liabilities. Seller and its Subsidiaries shall take all
\ncorporate actions necessary to provide for the transfer of all assets relating
\nto the Assumed Plans (as defined below) to the Purchaser as of, or as soon as
\npracticable following, the Closing. From and after the date of the transfer of
\nsuch assets, Purchaser shall assume sole sponsorship of all Seller Plans (other
\nthan any stock incentive plan, including, without limitation, the 1983 Incentive
\nStock Option Plan, the Employee Stock Purchase Plan, the Executive Stock Plan,
\nthe Conner Peripherals, Inc. 1986 Incentive Stock Plan, the 1991 Incentive Stock
\nOption Plan, the Amended and Restated Directors’ Option Plan, the Amended and
\nRestated Archive Corporation Stock Option and Restricted Stock Purchase Plan –
\n1981, the Amended and Restated Archive Corporation Incentive Stock Option Plan –
\n1981, the Conner Peripherals, Inc.–Arcada Holdings, Inc. Stock Option Plan,
\n1998 Non-Statutory Stock Option Plan, 1999 Stock Option Plan, Arcada Holdings
\nInc. 1994 Stock Option Plan, Xiotech Corporation Amended and Restated 1996 Stock
\nOption Plan) (such assumed Seller Plans, the “ASSUMED PLANS”) (provided,
\nhowever, that the Assumed Plans shall include the [Suez] Software Information
\nManagement Group, Inc. 1999 Stock Option Plan and any outstanding options to
\nacquire Seller Common Stock which are converted into options to acquire
\nPurchaser shares pursuant to the Roll Agreement), and shall assume and be
\nresponsible for all Liabilities whatsoever to Seller Employees, including,
\nwithout limitation, claims incurred under any Assumed Plan (including, without
\nlimitation, any statutory worker’s compensation claims), other than Liabilities
\nunder any Seller Plan which is not an Assumed Plan (each, a “NON-ASSUMED PLAN”).<\/p>\n
7.2 Employee Benefit Plans.<\/p>\n
(a) From and after the Closing, (i) Purchaser shall offer all
\nSeller Employees employment with a Sold Subsidiary following the Closing
\n(“TRANSFERRED EMPLOYEES”), initially on the same terms and conditions of
\nemployment that such Transferred Employee had<\/p>\n
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\n 39<\/p>\n
immediately prior to the Closing (including salary, title and location), and all
\nTransferred Employees shall be entitled to, service credit under all employee
\nbenefit plans of Purchaser, the Sold Subsidiaries or any of their respective
\nSubsidiaries equal to credited service time for Seller Employees under all
\nAssumed Plans prior to the Closing, (ii) any service of a Transferred Employee
\nprior to the Closing Date which was recognized under any medical plan of Seller
\nfor purposes of medical or dental coverage shall be recognized by the
\ncorresponding employee benefit plans of Purchaser, the Sold Subsidiaries and
\ntheir respective Subsidiaries, and (iii) any service of a Transferred Employee
\nprior to the Closing Date which was recognized under Seller’s vacation policy
\nshall be recognized under the vacation policy of Purchaser, the Sold
\nSubsidiaries and their respective Subsidiaries.<\/p>\n
(b) Purchaser agrees that all Transferred Employees who continue
\nemployment with Purchaser or any affiliate of Purchaser after the Closing
\n(“CONTINUING EMPLOYEES”) shall be eligible to continue to participate in all
\nAssumed Plans, provided that (i) nothing in this Section 7.2 shall limit the
\nright of Purchaser to amend or terminate any such Assumed Plan, and (ii) if
\nPurchaser terminates any such Assumed Plan, then the Continuing Employees shall
\nimmediately be eligible to participate in the corresponding Purchaser employee
\nbenefit plan or arrangement on substantially the same terms and conditions as
\nsimilarly situated employees of Purchaser and its affiliates. If a Continuing
\nEmployee ceases to be covered by an Assumed Plan providing health or welfare
\nbenefits prior to the end of the plan year, and subsequently becomes covered by
\nany Purchaser employee health or welfare benefit plan or arrangement, then (A)
\nthe Continuing Employee shall be given full credit under Purchaser’s plan or
\narrangement for any co-pays, deductibles and out-of-pocket maximums incurred by
\nhim or her for such plan year, and (B) Purchaser’s plan or arrangement shall
\nwaive any preexisting condition limitation or restriction otherwise applicable
\nto the Continuing Employee.<\/p>\n
7.3 WARN Act. Purchaser shall assume and be responsible for any
\nLiabilities arising under the Worker Adjustment and Retraining Notification Act
\nin connection with the termination of any Seller Employee on or after the
\nClosing Date.<\/p>\n
ARTICLE VIII
\n TAX MATTERS<\/p>\n
8.1 Conveyance Taxes. Purchaser shall pay all real property transfer or
\ngains, sales, use, transfer, value added, stock transfer, and stamp taxes, any
\ntransfer, recording, registration, and other fees, and any similar Taxes which
\nbecome payable in connection with the transactions contemplated by this
\nAgreement, and shall file such applications and documents as shall permit any
\nsuch Tax to be assessed and paid on or prior to the Closing Date in accordance
\nwith any available pre-sale filing procedure. Purchaser shall execute and
\ndeliver all instruments and certificates necessary to enable Seller to comply
\nwith this Section 8.1.<\/p>\n
8.2 Section 338(h)(10) Election.<\/p>\n
(a) At the request of Purchaser, Seller will join with Purchaser
\nin making an election under Section 338(h)(10) of the Code and Treasury
\nRegulation Section 1.338(h)(10)-1(d) (and, if permissible, any corresponding
\nelections under any applicable state and local income tax laws) (collectively,
\nthe “SECTION 338(h)(10) ELECTIONS”) with respect to the purchase<\/p>\n
-35-
\n 40<\/p>\n
and sale of Shares of any of the Sold Subsidiaries which is a United States
\nperson within the meaning of Section 7701(a)(30) of the Code (collectively, the
\n“U.S. SOLD SUBSIDIARIES”) hereunder.<\/p>\n
(b) To the extent possible, Purchaser, Seller and the U.S. Sold
\nSubsidiaries shall execute on or prior to the Closing any and all forms
\nnecessary to effectuate the Section 338(h)(10) Elections (including, without
\nlimitation, Internal Revenue Service Form 8023 and any similar forms under the
\napplicable state and local income tax laws (the “SECTION 338 FORMS”)). In the
\nevent, however, any Section 338 Forms are not executed at the Closing, Purchaser
\nand Seller shall prepare and complete each such Section 338 Form no later than
\n15 days prior to the date such Section 338 Form is required to be filed.
\nPurchaser and Seller shall each cause the Section 338 Forms to be duly executed
\nby an authorized person for Purchaser and Seller in each case, and shall duly
\nand timely file the Section 338 Forms in accordance with applicable tax Laws and
\nthe terms of this Agreement.<\/p>\n
(c) As soon as practicable after the Closing Date, Purchaser
\nshall (i) allocate the Purchase Price among the Sold Subsidiaries (the “STOCK
\nALLOCATION”), and (ii) determine the allocation of that portion of the Stock
\nAllocation attributable to any of the U.S. Sold Subsidiaries resulting from the
\nSection 338(h)(10) Elections (as required pursuant to Section 338(h)(10) of the
\nCode and the regulations promulgated thereunder) among the assets of such U.S.
\nSold Subsidiaries (the “SECTION 338 ALLOCATION”) after considering in good faith
\nSeller’s comments thereto. Purchaser, Seller and the U.S. Sold Subsidiaries
\nshall be bound by and shall file all Tax Returns (including amended Tax Returns
\nand amended Section 338 Forms, as necessary) consistently with the Section 338
\nAllocation.<\/p>\n
8.3 Tax Matters Schedule. Prior to the Closing Date, Seller shall
\npromptly take all actions set forth in Schedule V hereto with respect to the
\ntransactions described herein.<\/p>\n
ARTICLE IX
\n CONDITIONS TO CLOSING<\/p>\n
9.1 Conditions to Obligations of Each Party to Effect the Closing. The
\nrespective obligations of each party to this Agreement to effect the Closing
\nshall be subject to the satisfaction or fulfillment, at or prior to the Closing
\nDate, of each of the following conditions:<\/p>\n
(a) Stockholder Approval. The Required Stockholder Approval shall
\nhave been obtained.<\/p>\n
(b) Registration Statement Effective; Proxy Statement. The SEC
\nshall have declared the Registration Statement effective. No stop order
\nsuspending the effectiveness of the Registration Statement or any part thereof
\nshall have been issued and no proceeding for that purpose, and no similar
\nproceeding in respect of the Proxy Statement, shall have been initiated or
\nthreatened in writing by the SEC.<\/p>\n
(c) No Order; HSR Act. No Governmental Authority shall have
\nenacted, issued, promulgated, enforced or entered any statute, rule, regulation,
\nexecutive order, decree, injunction or other order (whether temporary,
\npreliminary or permanent) which is in effect and<\/p>\n
-36-
\n 41<\/p>\n
which has the effect of making the transactions contemplated hereby illegal or
\notherwise prohibiting consummation of the transactions contemplated hereby. All
\nrequirements, if any, under the HSR Act or equivalent foreign statute, rule,
\nregulation or order relating to the transactions contemplated hereby shall have
\nbeen satisfied.<\/p>\n
(d) Other Transaction. All of the conditions set forth in Article
\nVI of the VERITAS Merger Agreement (other than Section 6.1(f) thereof and the
\nfiling of the Merger Certificate thereunder) shall have been satisfied or
\nwaived. Purchaser shall have received a certificate with respect to the
\nforegoing, signed on behalf of Seller by the President and the Chief Financial
\nOfficer of Seller.<\/p>\n
9.2 Additional Conditions to Obligations of Seller. The obligation of
\nSeller to consummate and effect the transactions contemplated by this Agreement
\nshall be subject to the satisfaction or fulfillment, at or prior to the Closing
\nDate, of each of the following conditions, any of which may be waived, in
\nwriting, exclusively by Seller:<\/p>\n
(a) Representations and Warranties. The representations and
\nwarranties of Purchaser contained in this Agreement shall have been true and
\ncorrect in all material respects as of the date of this Agreement, except where
\nthe failure to be so true and correct would not, in the aggregate, reasonably be
\nexpected to have a material adverse effect on Purchaser. In addition, the
\nrepresentations and warranties of Purchaser contained in this Agreement shall be
\ntrue and correct in all material respects on and as of the Closing Date (except
\nfor changes contemplated by this Agreement and except for those representations
\nand warranties which address matters only as of a particular date, which shall
\nhave been true and correct only as of such particular date), with the same force
\nand effect as if made on and as of the Closing Date, except in such cases where
\nthe failure to be so true and correct would not, in the aggregate, reasonably be
\nexpected to have a material adverse effect on Purchaser. Seller shall have
\nreceived a certificate with respect to the foregoing, signed on behalf of
\nPurchaser by the Chief Executive Officer and the Chief Financial Officer of
\nPurchaser.<\/p>\n
(b) Agreements and Covenants. Purchaser shall have performed or
\ncomplied in all material respects with all agreements and covenants required by
\nthis Agreement to be performed or complied with by it on or prior to the Closing
\nDate, and Seller shall have received a certificate to such effect, signed on
\nbehalf of Purchaser by the Chief Executive Officer or the Chief Financial
\nOfficer of Purchaser.<\/p>\n
(c) OD Documents. The OD Documents shall be in full force and
\neffect, enforceable in accordance with their terms, and Seller shall not have
\nreceived any notice from the other party or parties to such OD Documents of its
\nor their intention to terminate the OD Documents.<\/p>\n
9.3 Additional Conditions to the Obligations of Purchaser. The
\nobligations of Purchaser to consummate and effect the transactions contemplated
\nhereby shall be subject to the satisfaction or fulfillment, at or prior to the
\nClosing Date, of each of the following conditions, any of which may be waived,
\nin writing, exclusively by Purchaser:<\/p>\n
-37-
\n 42<\/p>\n
(a) Representations and Warranties. The representations and
\nwarranties of Seller contained in this Agreement shall have been true and
\ncorrect in all material respects as of the date of this Agreement, except, in
\nthe case of all such representations and warranties other than those set forth
\nin Sections 3.3, 3.4, 3.15, 3.22, 3.23, 3.24 and 3.26 hereof, where the failure
\nto be so true and correct would not, in the aggregate, reasonably be expected to
\nhave a Material Adverse Effect. In addition, the representations and warranties
\nof Seller contained in this Agreement shall be true and correct in all material
\nrespects on and as of the Closing Date (except for changes contemplated by this
\nAgreement and except for those representations and warranties which address
\nmatters only as of a particular date, which shall remain true and correct as of
\nsuch particular date), with the same force and effect as if made on and as of
\nthe Closing Date, except, in the case of all such representations and warranties
\nother than those set forth in Sections 3.3, 3.4, 3.15, 3.22, 3.23, 3.24 and 3.26
\nhereof, where the failure to be so true and correct would not, in the aggregate,
\nreasonably be expected to have a Material Adverse Effect. Purchaser shall have
\nreceived a certificate with respect to the foregoing, signed on behalf of Seller
\nby the President or the Chief Financial Officer of Seller.<\/p>\n
(b) Agreements and Covenants. Seller shall have performed or
\ncomplied in all material respects with all agreements and covenants required by
\nthis Agreement to be performed or complied with by it on or prior to the Closing
\nDate, and Purchaser shall have received a certificate to such effect, signed on
\nbehalf of Seller by the President and the Chief Financial Officer of Seller.<\/p>\n
(c) Financing. Purchaser shall have received the proceeds of the
\nFinancing contemplated by the Commitment Letters.<\/p>\n
(d) Sold Subsidiaries Cash Amount. The Sold Subsidiaries shall
\nhave available, free and clear of any and all Liens, an amount of Cash at least
\nequal to the Required Cash.<\/p>\n
ARTICLE X
\n TERMINATION, AMENDMENT AND WAIVER<\/p>\n
10.1 Termination. This Agreement may be terminated at any time prior to
\nthe Closing Date, whether before or after approval of the transactions
\ncontemplated hereby by the stockholders of Seller:<\/p>\n
(a) by mutual written consent, duly authorized by the Boards of
\nDirectors of Purchaser and Seller;<\/p>\n
(b) by either Seller or Purchaser, if the transactions
\ncontemplated hereby shall not have been consummated by December 31, 2000;
\nprovided, however, that the right to terminate this Agreement pursuant to this
\nSection 10.1(b) shall not be available to any party hereto whose failure to
\nfulfill any obligation under this Agreement (including, without limitation, such
\nparty’s obligations under in Section 6.5 hereof) has been a principal cause of,
\nor resulted in, the failure of the transactions contemplated hereby to occur on
\nor before such date;<\/p>\n
-38-
\n 43<\/p>\n
(c) by either Seller or Purchaser, if a Governmental Authority
\nshall have issued an order, decree or ruling or taken any other action, in any
\ncase having the effect of permanently restraining, enjoining or otherwise
\nprohibiting the transactions contemplated hereby or by the OD Documents, which
\norder, decree or ruling is final and nonappealable;<\/p>\n
(d) by either Seller or Purchaser, if the Required Stockholder
\nApproval shall not have been obtained by reason of the failure to obtain the
\nRequired Stockholder Approval upon a vote taken at a meeting of stockholders
\nduly convened therefor or at any adjournment or postponement thereof; provided,
\nhowever, that the right to terminate this Agreement pursuant to this Section
\n10.1(d) shall not be available to Seller where the failure to obtain the
\nRequired Stockholder Approval shall have been caused by the action or failure to
\nact in a manner which constitutes a material breach of this Agreement;<\/p>\n
(e) by Seller, upon a breach of any representation, warranty,
\ncovenant or agreement on the part of Purchaser contained in this Agreement, or
\nif any representation or warranty of Purchaser shall have become untrue, in
\neither case such that the conditions set forth in Section 9.2(a) or Section
\n9.2(b) would not be satisfied as of the time of such breach or as of the time
\nsuch representation or warranty shall have become untrue, provided, however,
\nthat if such inaccuracy in Purchaser’s representations and warranties or breach
\nby Purchaser is curable, then Seller may not terminate this Agreement pursuant
\nto this Section 10.1(e) for thirty-five (35) calendar days after delivery of
\nwritten notice from Seller to Purchaser of such breach, provided that Purchaser
\ncontinues to exercise commercially reasonable efforts to cure such breach (it
\nbeing understood that Seller may not terminate this Agreement pursuant to this
\nSection 10.1(e) if such breach by Purchaser is cured during such thirty-five
\n(35)-day period);<\/p>\n
(f) by Purchaser, upon a breach of any representation, warranty,
\ncovenant or agreement on the part of Seller set forth in this Agreement, or if
\nany representation or warranty of Seller shall have become untrue, in either
\ncase such that the conditions set forth in Section 9.3(a) or Section 9.3(b)
\nwould not be satisfied as of the time of such breach or as of the time such
\nrepresentation or warranty shall have become untrue, provided, however, that if
\nsuch inaccuracy in Seller’s representations and warranties or breach by Seller
\nis curable, then Purchaser may not terminate this Agreement pursuant to this
\nSection 10.1(f) for thirty-five (35) calendar days after delivery of written
\nnotice from Purchaser to Seller of such breach, provided that Seller continues
\nto exercise commercially reasonable efforts to cure such breach (it being
\nunderstood that Purchaser may not terminate this Agreement pursuant to this
\nSection 10.1(f) if such breach by Seller is cured during such thirty-five
\n(35)-day period);<\/p>\n
(g) by Seller, if (i) prior to obtaining the Required Stockholder
\nApproval, Seller receives a Seller Superior Offer, the Board of Directors of
\nSeller concludes in good faith, after consultation with its outside counsel,
\nthat in light of such Seller Superior Offer, the termination of this Agreement
\nin order to accept such Seller Superior Offer is necessary in order for the
\nBoard of Directors of Seller to comply with its fiduciary obligations to the
\nstockholders of Seller under applicable Law, and (ii) Seller has complied with
\nall of its obligations under Section 6.5 hereof, and (iii) prior to the
\ntermination of this Agreement pursuant to this Section 10.1(g), Seller pays
\nPurchaser the Seller Termination Fee pursuant to Section 10.3(b)(ii) hereof;
\nprovided, however, that such termination may take place only after two (2)
\nbusiness days following Purchaser’s receipt of written notice advising Purchaser
\nthat the Board of Directors of<\/p>\n
-39-
\n 44<\/p>\n
the Seller has received a Seller Superior Offer specifying the material terms
\nand conditions of such Seller Superior Offer (and including a copy thereof with
\nall accompanying documentation, if in writing), identifying the person making
\nsuch Seller Superior Offer and stating that it intends to make the determination
\nset forth in clause (i) of this Section 10.1(g). After providing such notice,
\nSeller shall provide an opportunity to Purchaser to make such adjustments in the
\nterms and conditions of this Agreement as would enable Seller to proceed with
\nits recommendation to its stockholders without making the determination set
\nforth in clause (i) of this Section 10.1(g); provided, further, however, that
\nany such adjustment shall be at the discretion of Purchaser at the time; or<\/p>\n
(h) by Purchaser, if a Seller Triggering Event (as defined below)
\nshall have occurred. For the purposes of this Agreement, a “SELLER TRIGGERING
\nEVENT” shall be deemed to have occurred if (i) the Board of Directors of Seller
\nor any committee thereof shall for any reason have withdrawn or shall have
\namended or modified in a manner adverse to Purchaser its recommendation in favor
\nof the approval of this Agreement or the OD Documents and the transactions
\ncontemplated hereby or thereby, (ii) Purchaser shall have failed to include in
\nthe Proxy Statement the recommendation of the Board of Directors of Seller in
\nfavor of the approval of this Agreement or the OD Documents and the transactions
\ncontemplated hereby or thereby, or shall have taken any action or made any
\nstatement inconsistent with such recommendation, or (iii) a tender or exchange
\noffer for in excess of the fifteen percent (15%) of the equity securities of
\nSeller shall have been commenced by a person unaffiliated with Purchaser, and
\nSeller shall not have sent to its securityholders pursuant to Rule 14e-2
\npromulgated under the Securities Act, within ten (10) business days after such
\ntender or exchange offer is first published sent or given, a statement
\ndisclosing that Seller recommends rejection of such tender or exchange offer.<\/p>\n
10.2 Notice of Termination; Effect of Termination. Any termination of
\nthis Agreement pursuant to Section 10.1 hereof shall be effective immediately
\nupon the delivery of written notice of the terminating party to the other party
\nhereto. In the event of the termination of this Agreement pursuant to Section
\n10.1 hereof, this Agreement shall be of no further force or effect, except (i)
\nas set forth in this Section 10.2, Section 10.3 hereof and Article XII hereof,
\neach of which shall survive the termination of this Agreement without
\nlimitation, and (ii) nothing herein shall relieve any party from Liability for
\nany breach of this Agreement.<\/p>\n
10.3 Fees and Expenses.<\/p>\n
(a) General. Except as set forth in this Section 10.3, all fees
\nand expenses incurred in connection with this Agreement and the transactions
\ncontemplated hereby shall be paid by the party incurring such expenses, whether
\nor not the transactions contemplated by this Agreement are consummated.<\/p>\n
(b) Seller Payments.<\/p>\n
(i) Seller shall pay to Purchaser or its Designees in
\nimmediately available funds, within one (1) business day after demand by
\nPurchaser, an amount equal to $80,000,000 (the “SELLER TERMINATION FEE”) if this
\nAgreement is terminated by Purchaser pursuant to Section 10.1(h) hereof.<\/p>\n
-40-
\n 45<\/p>\n
(ii) Seller shall pay to Purchaser or its Designees in
\nimmediately available funds, prior to the termination of this Agreement, an
\namount equal to the Seller Termination Fee if this Agreement is terminated by
\nSeller pursuant to Section 10.1(g) hereof.<\/p>\n
(iii) Seller shall pay to Purchaser or its Designees in
\nimmediately available funds, within one (1) business day after the date Seller
\ndirectly or indirectly enters into an agreement with any third party with
\nrespect to a Seller Acquisition Transaction or a Seller Acquisition Transaction
\nis consummated, an amount equal to the Seller Termination Fee if (A) this
\nAgreement is terminated by either party pursuant to Section 10.1(d) hereof, (B)
\nat any time after the date of this Agreement and at or before the Seller
\nStockholders’ Meeting a Seller Acquisition Proposal shall have been publicly
\nannounced or otherwise communicated to Seller and not withdrawn, and (C) within
\ntwelve (12) months of the termination of this Agreement, Seller directly or
\nindirectly enters into an agreement with any third party with respect to a
\nBusiness Combination Transaction (as defined in Section 10.3(b)(vi) hereof) or a
\nBusiness Combination Transaction is consummated.<\/p>\n
(iv) Seller shall pay to Purchaser or its Designees in
\nimmediately available funds, within one (1) business day after the first to
\noccur of the events set forth in clause (D) below, an amount equal to the Seller
\nTermination Fee if (A) this Agreement is terminated by either party pursuant to
\nSection 10.1(b) hereof, (B) at any time after the date of this Agreement and at
\nor before the Termination Date a Seller Acquisition Proposal shall have been
\npublicly announced or otherwise communicated to Seller and not publicly
\nwithdrawn, (C) following the public announcement or communication of such Seller
\nAcquisition Proposal and prior to any such termination, Seller shall have
\nintentionally breached (and not cured after notice thereof) any of its covenants
\nor agreements set forth in this Agreement in any material respect, which breach
\nshall have contributed to the failure of the Closing to occur on or before the
\nTermination Date, and (D) within twelve (12) months of the termination of this
\nAgreement, Seller directly or indirectly enters into an agreement with any third
\nparty with respect to a Business Combination Transaction or a Business
\nCombination Transaction is consummated.<\/p>\n
(v) Seller acknowledges that the agreements contained in
\nthis Section 10.3(b) are an integral part of the transactions contemplated by
\nthis Agreement, and that, without these agreements, Purchaser would not enter
\ninto this Agreement.<\/p>\n
(vi) “BUSINESS COMBINATION TRANSACTION” shall mean any
\ntransaction or series of related transactions involving: (i) any acquisition or
\npurchase from Seller by any person or “group” (as defined under Section 13(d) of
\nthe Exchange Act and the rules and regulations promulgated thereunder) of more
\nthan fifty percent (50%) in interest of the total outstanding voting securities
\nof Seller, or any tender offer or exchange offer that if consummated would
\nresult in any person or “group” (as defined under Section 13(d) of the Exchange
\nAct and the rules and regulations promulgated thereunder) beneficially owning
\nmore than fifty percent (50%) of the total outstanding voting securities of
\nSeller, or any merger, consolidation, business combination or similar
\ntransaction involving Seller pursuant to which the stockholders of Seller
\nimmediately preceding such transaction would hold less than fifty percent (50%)
\nof the equity interests in the surviving or resulting entity of such transaction
\n(or the ultimate parent entity thereof); (ii) any sale, lease (other than in the
\nordinary course of business), exchange, transfer, license (other than in the
\nordinary course of business), acquisition or disposition of more than fifty
\npercent (50%) of the fair market value of the consolidated assets and properties
\nof Seller; (iii) a sale or other disposition by Seller of all or more than<\/p>\n
-41-
\n 46<\/p>\n
fifty percent (50%) of the assets that would have been held by the Sold
\nSubsidiaries if the Split had taken place; and (iv) the acquisition by any
\nperson or group (including by way of a tender offer or an exchange offer or
\nissuance by Seller), directly or indirectly, of beneficial ownership or a right
\nto acquire beneficial ownership of shares representing in excess of fifty
\npercent (50%) of the voting power of the then outstanding shares of capital
\nstock of Seller.<\/p>\n
10.4 Amendment. Subject to applicable Law, this Agreement may be amended
\nby the parties hereto at any time by execution of an instrument in writing
\nsigned on behalf of each of the parties hereto.<\/p>\n
10.5 Extension; Waiver. At any time prior to the Closing Date any party
\nhereto may, to the extent legally allowed, (i) extend the time for the
\nperformance of any of the obligations or other acts of the other party hereto,
\n(ii) waive any inaccuracies in the representations and warranties made to such
\nparty contained herein or in any document delivered pursuant hereto, and (iii)
\nwaive compliance with any of the agreements or conditions for the benefit of
\nsuch party contained herein. Any agreement on the part of a party hereto to any
\nsuch extension or waiver shall be valid only if set forth in an instrument in
\nwriting signed on behalf of such party. Delay in exercising any right under this
\nAgreement shall not constitute a waiver of such right.<\/p>\n
ARTICLE XI
\n INDEMNIFICATION<\/p>\n
11.1 Survival. The representations and warranties of Seller contained in
\nthis Agreement, and any representation or warranty, statement or other
\ninformation contained in any Exhibit to this Agreement, the Seller Disclosure
\nSchedule, the TA Statement and any certificate, instrument or other report or
\ndocument delivered by Seller pursuant to this Agreement or in connection with
\nthe transactions contemplated hereby (collectively, the “ACQUISITION
\nDocuments”), shall not survive the Closing. Neither the period of non-survival
\nnor the Liability of Seller with respect to Seller’s representations or
\nwarranties, statements or other information contained in any of the Acquisition
\nDocuments shall be increased by any investigation made at any time by or on
\nbehalf of Purchaser, either before or after the Closing.<\/p>\n
11.2 Indemnification. Purchaser shall indemnify and hold harmless Seller
\nand each other party to the Indemnification Agreement against all losses and
\nclaims to the extent provided in the Indemnification Agreement.<\/p>\n
ARTICLE XII
\n GENERAL PROVISIONS<\/p>\n
12.1 Notices. All notices and other communications hereunder shall be in
\nwriting and shall be deemed given if delivered personally or by commercial
\ndelivery service, or sent via facsimile (receipt confirmed) to the parties at
\nthe following addresses or facsimile numbers (or at such other address or
\nfacsimile numbers for a party as shall be specified by like notice):<\/p>\n
(a) if to Purchaser (or the Sold Subsidiaries following the
\nClosing), to:<\/p>\n
-42-
\n 47<\/p>\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 Menlo Park, California 94025
\n Attention: Dave Roux
\n Facsimile: 650-233-8125
\n Telephone: 650-233-8121<\/p>\n
with a copy to:<\/p>\n
Simpson Thacher & Bartlett
\n 425 Lexington Avenue
\n New York, New York 10017-3954
\n Attention: William E. Curbow, Esq.
\n Facsimile: 212-455-2502
\n Telephone: 212-455-2000<\/p>\n
and to:<\/p>\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<\/p>\n
with a copy to:<\/p>\n
Cleary, Gottlieb, Steen & 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<\/p>\n
and to:<\/p>\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<\/p>\n
with a copy to:<\/p>\n
-43-
\n 48<\/p>\n
Willkie Farr & Gallagher
\n 787 Seventh Avenue
\n New York, New York 10019
\n Attention: Michael A. Schwartz
\n Facsimile: 212-728-8111
\n Telephone: 212-728-8000<\/p>\n
(b) if to Seller, SSHI (or the Sold Subsidiaries prior to the
\n Closing), to:
\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<\/p>\n
with a copy to:<\/p>\n
Wilson Sonsini Goodrich & Rosati
\n Professional Corporation
\n 650 Page Mill Road
\n Palo Alto, California 94304-1050
\n Attention: Larry W. Sonsini, Esq.
\n Facsimile: 650-493-6811
\n Telephone: 650-493-9300<\/p>\n
and to:<\/p>\n
Wilson Sonsini Goodrich & 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<\/p>\n
12.2 Interpretation. When a reference is made in this Agreement to
\nSchedules or Exhibits, such reference shall be to a Schedule or Exhibit to this
\nAgreement unless otherwise indicated. The words “include,” “includes” and
\n“including” when used herein shall be deemed in each case to be followed by the
\nwords “without limitation.” The table of contents and headings contained in this
\nAgreement are for convenience of reference only and shall not affect in any way
\nthe meaning or interpretation of this Agreement or any term or provision hereof.
\nWhen reference is made herein to “the business of” an entity, such reference
\nshall be deemed to include the business of all direct and indirect Subsidiaries
\nof such entity.<\/p>\n
-44-
\n 49<\/p>\n
12.3 Counterparts. This Agreement may be executed in one or more
\ncounterparts, all of which shall be considered one and the same agreement and
\nshall become effective when each counterpart has been signed by each of the
\nparties and delivered to the other party, it being understood that all parties
\nneed not sign the same counterpart.<\/p>\n
12.4 Entire Agreement. This Agreement and the documents and instruments
\nand other agreements among the parties hereto as contemplated by or referred to
\nherein, including, without limitation, the Seller Disclosure Schedule and the
\nPurchaser Disclosure Schedule, (i) constitute the entire agreement among the
\nparties with respect to the subject matter hereof and supersede all prior
\nagreements and understandings, both written and oral, among the parties with
\nrespect to the subject matter hereof, it being understood that the
\nConfidentiality Agreement shall continue in full force and effect until the
\nClosing and shall survive any termination of this Agreement; and (ii) are not
\nintended to confer upon any other person any rights or remedies hereunder,
\nexcept as set forth herein.<\/p>\n
12.5 Severability. In the event that any provision of this Agreement or
\nthe application thereof, becomes or is declared by a court of competent
\njurisdiction to be illegal, void or unenforceable, the remainder of this
\nAgreement will continue in full force and effect and the application of such
\nprovision to other persons or circumstances will be interpreted so as reasonably
\nto effect the intent of the parties hereto. The parties further agree to replace
\nsuch void or unenforceable provision of this Agreement with a valid and
\nenforceable provision that will achieve, to the extent possible, the economic,
\nbusiness and other purposes of such void or unenforceable provision.<\/p>\n
12.6 Other Remedies; Specific Performance. Except as otherwise provided
\nherein, any and all remedies herein expressly conferred upon a party will be
\ndeemed cumulative with and not exclusive of any other remedy conferred hereby,
\nor by law or equity upon such party, and the exercise by a party of any one
\nremedy will not preclude the exercise of any other remedy. The parties hereto
\nagree that irreparable damage would occur in the event that any of the
\nprovisions of this Agreement were not performed in accordance with their
\nspecific terms or were otherwise breached. It is accordingly agreed that the
\nparties shall be entitled to an injunction or injunctions to prevent breaches of
\nthis Agreement and to enforce specifically the terms and provisions hereof in
\nany court of the United States or any state having jurisdiction, this being in
\naddition to any other remedy to which they are entitled at law or in equity.<\/p>\n
12.7 Governing Law. This Agreement shall be governed by and construed in
\naccordance with the laws of the State of Delaware, without regard to conflicts
\nof law principles.<\/p>\n
12.8 Rules of Construction. The parties hereto agree that they have been
\nrepresented by counsel during the negotiation and execution of this Agreement
\nand, therefore, waive the application of any Law, regulation, holding or rule of
\nconstruction providing that ambiguities in an agreement or other document will
\nbe construed against the party drafting such agreement or document.<\/p>\n
12.9 Assignment. No party may assign either this Agreement or any of its
\nrights, interests, or obligations hereunder, in whole or in part, by operation
\nof law or otherwise, without the prior written approval of the other party
\nhereto; provided, however, that Purchaser shall have<\/p>\n
-45-
\n 50<\/p>\n
the right to assign any or all of its rights to acquire the Shares is one or
\nmore designee (each, a “DESIGNEE”); and provided, further, however, that no such
\nassignment shall release Purchaser from any of its Liabilities or obligations
\nunder this Agreement. Subject to the preceding sentence, this Agreement shall be
\nbinding upon and shall inure to the benefit of the parties hereto and their
\nrespective successors and permitted assigns.<\/p>\n
12.10 WAIVER OF JURY TRIAL. EACH OF SELLER AND PURCHASER HEREBY
\nIRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
\nCOUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
\nRELATING TO THIS AGREEMENT OR THE ACTIONS OF SELLER OR PURCHASER IN THE
\nNEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.<\/p>\n
12.11 No Third Party Rights. Except as expressly set forth herein and as
\nprovided in Section 6.10 hereof, this Agreement does not create any rights,
\nclaims or benefits incurring to any person that is not a party hereto nor create
\nor establish any third party claim.<\/p>\n
12.12 Attorneys’ Fees. Should suit be brought to enforce or interpret
\nany party of this Agreement, the prevailing party will be entitled to recover,
\nas an element of the costs of suit and not as damages, reasonably attorneys’
\nfees to be fixed by the court, including, without limitation, costs, expenses
\nand fees on any appeal. The prevailing party will be entitled to recover its
\ncosts of suit, regardless of whether such suit proceeds to final judgment.<\/p>\n
[Remainder of Page Intentionally Left Blank]<\/p>\n
-46-
\n 51<\/p>\n
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
\nexecuted by their duly authorized respective officers, as of the date first
\nabove written.<\/p>\n
SUEZ ACQUISITION COMPANY
\n (CAYMAN) LIMITED<\/p>\n
By:
\n —————————-
\n Name:
\n Title:<\/p>\n
SEAGATE TECHNOLOGY, INC.<\/p>\n
By:
\n —————————-
\n Name:
\n Title:<\/p>\n
SEAGATE SOFTWARE HOLDINGS, INC.<\/p>\n
By:
\n —————————-
\n Name:
\n Title:<\/p>\n
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT<\/p>\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-43712","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\/43712","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=43712"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43712"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43712"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43712"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}