Common use of Other Tax Matters Clause in Contracts

Other Tax Matters. (a) SCO, Newco and Caldera will cooperate fully with each other in connection with the preparation of all returns and reports of Taxes, information returns, and all audit examinations of, or claims or assertions against, any member of the Contributed Company Group, in each case including but not limited to the furnishing or making available of records, books of account or other materials and appropriate personnel necessary or helpful to the defense against the assertions of any taxing authority. SCO shall, within ninety days after the Effective Time, deliver to Newco a schedule listing the tax basis of each of the Contributed Stock and Assets, along with copies of supporting calculations, information and records. (b) Except as provided in Section 12.4(c), in the event and to the extent that SCO or any member of an affiliated group of corporations (as defined in Section 1504 of the Internal Revenue Code or otherwise) of which SCO is a member (other than any member of the Contributed Company Group) receives a refund or credit of Taxes for any taxable period that ends prior to the Effective Time or in respect of any period that includes, but does not end on, the Effective Time, the portion of such period ending on the Effective Time (the "Pre-Closing Period") which is attributable to the carry back of losses, credits or similar items from any Tax return of any member of the Contributed Company Group, and in any case, in respect of any taxable period that begins after the Effective Time or in respect of any period that includes, but does not end on the Effective Time, the portion of such period commencing on the day following the Effective Time (the "Post-Closing Period"), SCO shall pay to Newco, net of any additional Tax payable by SCO or its Affiliates by reason of such carryback, the amount of such refund or credit (including any interest received thereon) or Tax reduction. In the event that any refund or credit of Taxes or Tax reductions for which a payment has been made pursuant to this Section 12.4(b) subsequently is reduced or disallowed, the Contributed Companies and Newco shall indemnify and hold harmless SCO and its Affiliates for any Tax liability, including interest and penalties, assessed by reason of such reduction or disallowance. (c) In the event that an indemnified party receives a refund or credit relating to Taxes for which the other party is required to indemnify the first party pursuant to Section 12.3 of this Agreement (including, but not limited to VAT refunds), such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon). In the event that any refund or credit of Taxes for which a payment has been made pursuant to this Section 12.4(c) subsequently is reduced or disallowed, the indemnifying party shall indemnify and hold harmless the indemnified party for any Tax liability, including interest and penalties, assessed by reason of such reduction or disallowance. (d) If any claim for Tax relating to the Group Business or the Contributed Company Group is asserted against SCO or any Affiliate for any Pre-Closing Period, SCO shall promptly notify Newco in writing of such fact. SCO and its duly appointed representatives shall have the sole right to negotiate, resolve, settle or contest any such claim for Tax; provided, however, that they shall deal fairly and in good faith with respect to any claim for Tax which would require a payment by Newco to SCO or its Affiliates under Section 12.3(c) or this Section 12.4 and provided further, that with respect to any claim which would require a payment by Newco or have a Material Adverse Effect on the Group Business, no settlement will be agreed to without Newco's prior written consent. Such consent shall not be unreasonably withheld. Newco shall bear the legal and accounting costs and expenses incurred in contesting a matter for which it has withheld its consent. If any claim for Tax relating to the Contributed Company Group for any Post-Closing Period comes to the attention of SCO, SCO will notify Newco promptly of such claims and will cooperate fully with Newco and the Contributed Company Group in the resolution of such claim. A failure to promptly notify pursuant to this Section 12.4(d) shall not preclude another party's indemnification obligation. (e) SCO shall prepare any Tax returns (including any amendments thereto) of the members of the Contributed Company Group for all taxable periods that end, with respect to the Contributed Company Group, on or before the Effective Time (including any short period ending on the Effective Time) and which are due either before or after the Effective Time and shall deliver to Newco for signing by the appropriate party and filing, any Tax returns of the members of the Contributed Company Group (including any amendments thereto) with respect to any such period that have not been filed prior to the Effective Time. SCO shall deliver any such tax return or the portion thereof relating to the Group Business to Newco at least fifteen days prior to the date such tax return is due to be filed (taking into account any applicable extensions). SCO shall report for federal income tax purposes the operations of the Group Business and the Contributed Company Group for any short period ending on the Effective Time, and shall be responsible for the filing of, the consolidated tax returns of SCO's consolidated group which will include the income of the Group Business and the Contributed Company Group through the Effective Time and Newco will pay to SCO any amounts relating to such tax returns required by Section 12.3(c) prior to the filing of such tax returns. In order appropriately to apportion any taxes relating to a period that includes (but that would not, but for this Section 12.4(e) end on the Effective Time), the parties hereto will, to the extent permitted by applicable law, elect with the relevant taxing authority to treat for all purposes the Effective Time as the last day of a taxable period of any member of the Contributed Company Group. SCO shall, in respect of such returns, and Newco and the Contributed Company Group for returns with respect to the Post-Closing Period shall determine the income, gain, expenses, losses, deductions and credits of the Group Business and the Contributed Company Group in a manner (i) consistent with prior practice and actual operations in a manner that apportions such income, gain, expenses, loss, deductions and credits equitably from period to period and (ii) consistent with prior years. (f) The provisions of this Section 12 with respect to the consolidated groups or consolidated returns that include SCO or its Affiliates other than a Contributed Company shall apply mutatis mutandis with respect to combined or unitary groups or returns thereof. (g) Newco and SCO shall make (or indemnify the payor against) payments of estimated taxes (including amounts due with extensions) for which they are responsible under this Agreement in a timely manner. A payment or indemnity obligation under this Section 12 which is not made or satisfied when due shall accrue interest at the rate applicable to late payments of the pertinent Tax. Notwithstanding anything in this Section 12 to the contrary, a party shall not have to bear the cost of a Tax liability more than once (e.g., a payment of an estimated tax shall be credited against any payment due when the return is filed). (h) Except as provided in paragraph 12.4(e), for purposes of allocating a Tax for which a party is otherwise responsible under Section 12.3 or this Section 12.4, the portion of those Taxes that are attributable to the operations of the Group Business or of any member of the Contributed Company Group for a relevant period (the "Interim Period") shall be (i) in the case of a Tax that is not based on a net income, the total amount of such Tax for the Interim Period in question multiplied by a fraction, the numerator of which is the number of days in the Interim Period and the denominator of which is the total number of days in such period, and (ii) in the case of a Tax that is based on net income, the Tax that is due shall be an amount as equitably determined by the parties based upon a hypothetical closing of the books. (i) If Newco, a Contributed Company or any of its respective Affiliates receive any notice of the assertion of any Tax liability relating to a member of the Contributed Company Group for which SCO may be liable under this Agreement, Newco shall give prompt written notice thereof to SCO. (j) After the Closing, Newco and the Contributed Companies will provide reasonable access to all relevant Newco and Contributed Company Group books, records, agreements and memoranda, and provide such assistance to SCO as SCO and its Affiliates shall reasonably request, with respect to any federal, foreign, state, provincial or local Tax matters pertaining to the members of the Contributed Company Group for taxable periods or transactions on or prior to the Effective Time. Newco will notify SCO prior to disposition of such Tax records, if such disposition will take place within ten years after the Effective Time. After the Closing, the parties will provide reasonable access to all relevant SCO and Contributed Companies' books, records, agreements, memoranda and tax returns, and provide copies of such information and such assistance to the other party as it shall reasonably request, with respect to any federal, foreign, state, provincial or local Tax matters pertaining to the Contributed Assets and the Contributed Company Group for taxable periods or transactions on or prior to the Effective Time. (k) Notwithstanding anything in this Agreement to the contrary, SCO and Newco covenant and agree (unless there has been a final determination as defined in Section 1313(a) of the Code or any other event which conclusively establishes a contrary position) for all Tax purposes, including all Tax Returns and any Tax examinations, proceedings or controversies, to (and to cause any Affiliate or successor to its assets or businesses to) take

Other Tax Matters. (a) SCO, Seagate and Newco and Caldera will cooperate fully with each other in connection with the preparation of all returns and reports of Taxes, information returns, and all audit examinations of, or claims or assertions against, any member of the Contributed Company Group, in each case including but not limited to the furnishing or making available of records, books of account or other materials and appropriate personnel necessary or helpful to the defense against the assertions of any taxing authority. SCO Seagate shall, within ninety days a reasonable time after the Effective TimeClosing Date but no later than 60 days prior to the deadline (including extensions) of any Tax return of Newco or its Affiliates that includes the operations of the Group Business or the Contributed Company Group, use its best efforts to deliver to Newco a schedule listing the tax basis of each of the Group Assets and the Contributed Stock and Assets, along with copies of supporting calculations, information and recordsStock. (b) Except as provided in Section 12.4(c13.5(c), in the event and to the extent that SCO STI or any member of an affiliated group of corporations (as defined in Section 1504 of the Internal Revenue Code or otherwiseCode) of which SCO STI is a member (other than any member of the Contributed Company Group) receives a refund or credit of Taxes for any taxable period that ends prior to the Effective Time Closing Date or in respect of any period that includes, but does not end on, the Effective Time, the portion of such period ending on the Effective Time (the "PrePRE-Closing PeriodCLOSING PERIOD") which is attributable to the carry back of losses, credits or similar items from any Tax return of any member of the Contributed Company Group, and in any case, in respect of any taxable period that begins after the Effective Time or in respect of any period that includes, but does not end on the Effective Time, the portion of such period commencing on the day following the Effective Time (the "Post-Closing Period"), SCO STI shall pay to Newco, net of any additional Tax payable by SCO STI or its Affiliates by reason of such carryback, the amount of such refund or credit (including any interest received thereon) or Tax reduction. In the event that any refund or credit of Taxes or Tax reductions for which a payment has been made pursuant to this Section 12.4(b) 13.5 subsequently is reduced or disallowed, the Contributed Companies and Newco shall indemnify and hold harmless SCO STI and its Affiliates for any Tax liability, including interest and penalties, assessed by reason of such reduction or disallowance. (c) In the event that an indemnified party receives a refund or credit relating to of Taxes for which the other party is required to indemnify the first party it has been indemnified pursuant to Section 12.3 13.4 of this Agreement (including, but not limited to VAT refunds)Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon). In the event that any refund or credit of Taxes for which a payment has been made pursuant to this Section 12.4(c13.5(c) subsequently is reduced or disallowed, the indemnifying party shall indemnify and hold harmless the indemnified party for any Tax liability, including interest and penalties, assessed by reason of such reduction or disallowance. (d) If any claim for Tax relating to the Group Business or the Contributed Company Group is asserted against SCO STI or SSI or any Affiliate for any Pre-Closing Period, SCO STI shall promptly notify Newco in writing of such fact. SCO STI, SSI and its their duly appointed representatives shall have the sole right to negotiate, resolve, settle or contest any such claim for Tax; provided, however, that they shall deal fairly and in good faith with respect to any claim for Tax which would require a payment by Newco to SCO STI or its Affiliates affiliates under Section 12.3(c13.4(c) or this Section 12.4 and provided further, that with respect to any claim which would require a payment by Newco or have a Material Adverse Effect on the Group Business, no settlement will be agreed to without Newco's prior written consent. Such consent shall not be unreasonably withheld. If Newco fails to provide STI with written consent within 30 days of a written request from STI, and submits a written objection the procedures in Section 7(c) of the Tax Allocation Agreement dated as of April 4, 1996 (the "TAX ALLOCATION AGREEMENT") shall be applied. Newco shall bear the legal and accounting costs and expenses incurred in contesting a matter for which it has withheld its consent. If any claim for Tax relating to the Contributed Company Group for any Post-Closing Period comes to the attention of SCOSTI, SCO STI will notify Newco promptly of such claims and will cooperate fully with Newco and the Contributed Company Group in the resolution of such claim. A failure to promptly notify pursuant to this Section 12.4(d13.6(d) shall not preclude another party's indemnification obligation. (e) SCO STI shall prepare any Tax returns (including any amendments thereto) of the members of the Contributed Company Group for all taxable periods that end, with respect to the Contributed Company Group, on or before the Effective Time (including any short period ending on the Effective TimeClosing Date) and which are due either before or after the Effective Time and shall deliver to Newco for signing by the appropriate party and filing, any Tax returns of the members of the Contributed Company Group (including any amendments thereto) with respect to any such period that have not been filed prior to the Effective Time. SCO STI shall deliver any such tax return or the portion thereof relating to the Group Business to Newco at least fifteen days prior to the date such tax return is due to be filed (taking into account any applicable extensions). SCO STI shall report for federal income tax purposes the operations of the Group Business and the Contributed Company Group for any short period ending on the Effective Time, and shall be responsible for the filing of, the consolidated tax returns of SCOSTI's consolidated group which will include the income of the Group Business and the Contributed Company Group through the Effective Time and Newco will pay to SCO STI any amounts relating to such tax returns required by Section 12.3(c13.4(c) prior to the filing of such tax returns. In order appropriately to apportion any taxes relating to a period that includes (but that would not, but for this Section 12.4(e13.5(e) end on the Effective Time), the parties hereto will, to the extent permitted by applicable law, elect with the relevant taxing authority to treat for all purposes the Effective Time as the last day of a taxable period of any member of the Contributed Company Group. SCO STI shall, in respect of such returns, and Newco and the Contributed Company Group for returns with respect to the Post-Closing Period shall determine the income, gain, expenses, losses, deductions and credits of the Group Business and the Contributed Company Group in a manner (i) consistent with prior practice and actual operations in a manner that apportions such income, gain, expenses, loss, deductions and credits equitably from period to period and (ii) consistent with prior years. STI and SSI shall not pay a "FSC" commission with respect to the Group Business without the prior written consent of Newco. (f) The tax returns described in Section 13.5(e) shall be prepared in accordance with the Tax Allocation Agreement except to the extent it is inconsistent with Section 13.5(e). In addition, the parties agree that for the taxable periods the Contributed Companies are included in a consolidated return with STI or SSI, the parties will compensate each other for the use of losses and credits in the amounts determined in accordance with the Tax Allocation Agreement. The provisions of this Section 12 13 with respect to the consolidated groups or consolidated returns that include SCO STI or its Affiliates SSI or their affiliates other than a Contributed Company shall apply mutatis mutandis with respect to combined ---------------- or unitary groups or returns thereof. (g) Newco Newco, STI and SCO SSI shall make (or indemnify the payor against) payments of estimated taxes (including amounts due with extensions) for which they are responsible under this Agreement agreement in accordance with the Tax Allocation Agreement. Any Tax which is due (including estimated Taxes) on or prior to the Effective Time and which is the responsibility of Newco, shall, in lieu of requiring a timely mannerpayment by Newco prior to the Effective Time, be satisfied by a payment out of the Group Assets or the Group Business or after payment of such Tax by STI or SSI through an increase in the account balances owed by the Group Business or the Contributed Companies to STI or SSI, which increase in the obligation will be satisfied by Newco subsequent to the Closing. A payment or indemnity obligation under this Section 12 section 13 which is not made or satisfied when due shall accrue interest at the rate applicable to late payments of the pertinent Tax6% compounded daily. Notwithstanding anything in this Section 12 13 to the contrary, a party shall not have to bear the cost of a Tax liability more than once (e.g., e.g. a payment of an estimated tax shall be credited against any payment due when the return is filed). (h) Except as provided in paragraph 12.4(e13.5(e), for purposes of allocating a Tax for which a party is otherwise responsible under Section 12.3 or this Section 12.413.4, the portion of those Taxes that are attributable to the operations of the Group Business or of any member of the Contributed Company Group for a relevant period (the "Interim PeriodINTERIM PERIOD") shall be (i) in the case of a Tax that is not based on a net income, the total amount of such Tax for the Interim Period in question multiplied by a fraction, the numerator of which is the number of days in the Interim Period and the denominator of which is the total number of days in such period, and (ii) in the case of a Tax that is based on net income, the Tax that is due shall be an amount as equitably determined by the parties based upon a hypothetical closing of the books. (i) If Newco, a Contributed Company or any of its respective Affiliates receive Affiliate receives any notice of the assertion of any Tax liability relating to a member of the Contributed Company Group for which SCO STI or SSI may be liable under this Agreement, Newco shall give prompt written notice thereof to SCOSTI or SSI. A failure to promptly notify pursuant to this paragraph shall not preclude another party's indemnification obligation. (j) After the Closing, Newco and the Contributed Companies will provide reasonable access to all relevant Newco and the Contributed Company Group relevant books, records, agreements and memoranda, and provide such assistance to SCO STI and SSI as SCO STI, SSI and its their Affiliates shall reasonably request, with respect to any federal, foreign, state, provincial state or local Tax matters pertaining to the members of the Contributed Company Group for taxable periods or transactions on or prior to the Effective Time. Newco will notify SCO STI prior to disposition of such Tax records, if such disposition will take place within ten years after the Effective Time. After the Closing, the parties will provide reasonable access to all relevant SCO and Contributed Companies' books, records, agreements, memoranda and tax returns, and provide copies of such information and such assistance to the other party as it shall reasonably request, with respect to any federal, foreign, state, provincial or local Tax matters pertaining to the Contributed Assets and the Contributed Company Group for taxable periods or transactions on or prior to the Effective Time. (k) Notwithstanding anything in this Agreement to the contrary, SCO STI and Newco covenant and agree agree, (unless there has been a final determination as defined in Section 1313(a) of the Code or any other event which conclusively establishes a contrary position) for all Tax purposes, purposes including all Tax Returns and any Tax examinations, proceedings or controversies, to (and to cause any Affiliate affiliate or successor to its their assets or businesses to) taketake each of the positions set forth below (and not to take any position inconsistent therewith) and to use good faith and reasonable best efforts to defend such positions: (i) The Merger (i) will qualify as a tax-free reorganization described in Section 368(a) of the Code and (ii) when taken together with the Seagate Transaction, will qualify as a tax-free transfer of the stock of VERITAS to Newco governed by Section 351(a) of the Code. (ii) The Seagate Transaction, when taken together with Merger, will qualify as a transfer of the Contributed Stock and Contributed Assets to Newco governed by Section 351(a) of the Code. (iii) None of the consideration issued in connection with the Seagate Transaction will be paid or issued for services or as a covenant not to compete. (l) STI and Newco agree to report to the other any communication from or with the Internal Revenue Service or any other Taxing Authority which relates in any way to the characterization of the transactions governed by this Agreement. Each of STI and Newco will file with its Federal income tax return for the taxable year in which the Merger and Seagate Transaction occurs (which tax return shall be timely filed) the information required by Treas. Reg. (S) 1.351-3 and 1.368-3 and to provide each other upon request with a statement to the effect that such party has complied with this requirement after filing. STI, the Contributed Companies, and Newco also will maintain such permanent records as are required by Treas. Reg. (S)(S) 1.351-3(c) and 1.368-3. -76-

Other Tax Matters. (a) SCO, Newco and Caldera will cooperate fully with each other in connection with the preparation of all returns and reports of Taxes, information returns, and all audit examinations of, or claims or assertions against, any member of the Contributed Company Group, in each case including but not limited to the furnishing or making available of records, books of account or other materials and appropriate personnel necessary or helpful to the defense against the assertions of any taxing authority. SCO shall, within ninety days after the Effective Time, deliver to Newco a schedule listing the tax basis of each of the Contributed Stock and Assets, along with copies of supporting calculations, information and records. (b) Except as provided in Section 12.4(c), in the event and to --------------- the extent that SCO or any member of an affiliated group of corporations (as defined in Section 1504 of the Internal Revenue Code or otherwise) of which SCO is a member (other than any member of the Contributed Company Group) receives a refund or credit of Taxes for any taxable period that ends prior to the Effective Time or in respect of any period that includes, but does not end on, the Effective Time, the portion of such period ending on the Effective Time (the "Pre-Closing Period") which is attributable to the carry back of losses, credits or similar items from any Tax return of any member of the Contributed Company Group, and in any case, in respect of any taxable period that begins after the Effective Time or in respect of any period that includes, but does not end on the Effective Time, the portion of such period commencing on the day following the Effective Time (the "Post-Closing Period"), SCO shall pay to Newco, net of any additional Tax payable by SCO or its Affiliates by reason of such carryback, the amount of such refund or credit (including any interest received thereon) or Tax reduction. In the event that any refund or credit of Taxes or Tax reductions for which a payment has been made pursuant to this Section 12.4(b) subsequently --------------- is reduced or disallowed, the Contributed Companies and Newco shall indemnify and hold harmless SCO and its Affiliates for any Tax liability, including interest and penalties, assessed by reason of such reduction or disallowance. (c) In the event that an indemnified party receives a refund or credit relating to Taxes for which the other party is required to indemnify the first party pursuant to Section 12.3 of this Agreement (including, but not limited to VAT refunds), such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon). In the event that any refund or credit of Taxes for which a payment has been made pursuant to this Section 12.4(c) subsequently is reduced or disallowed, the indemnifying party shall indemnify and hold harmless the indemnified party for any Tax liability, including interest and penalties, assessed by reason of such reduction or disallowance. (d) If any claim for Tax relating to the Group Business or the Contributed Company Group is asserted against SCO or any Affiliate for any Pre-Closing Period, SCO shall promptly notify Newco in writing of such fact. SCO and its duly appointed representatives shall have the sole right to negotiate, resolve, settle or contest any such claim for Tax; provided, however, that they shall deal fairly and in good faith with respect to any claim for Tax which would require a payment by Newco to SCO or its Affiliates under Section 12.3(c) or this Section 12.4 and provided further, that with respect to any claim which would require a payment by Newco or have a Material Adverse Effect on the Group Business, no settlement will be agreed to without Newco's prior written consent. Such consent shall not be unreasonably withheld. Newco shall bear the legal and accounting costs and expenses incurred in contesting a matter for which it has withheld its consent. If any claim for Tax relating to the Contributed Company Group for any Post-Closing Period comes to the attention of SCO, SCO will notify Newco promptly of such claims and will cooperate fully with Newco and the Contributed Company Group in the resolution of such claim. A failure to promptly notify pursuant to this Section 12.4(d) shall not preclude another party's indemnification obligation. (e) SCO shall prepare any Tax returns (including any amendments thereto) of the members of the Contributed Company Group for all taxable periods that end, with respect to the Contributed Company Group, on or before the Effective Time (including any short period ending on the Effective Time) and which are due either before or after the Effective Time and shall deliver to Newco for signing by the appropriate party and filing, any Tax returns of the members of the Contributed Company Group (including any amendments thereto) with respect to any such period that have not been filed prior to the Effective Time. SCO shall deliver any such tax return or the portion thereof relating to the Group Business to Newco at least fifteen days prior to the date such tax return is due to be filed (taking into account any applicable extensions). SCO shall report for federal income tax purposes the operations of the Group Business and the Contributed Company Group for any short period ending on the Effective Time, and shall be responsible for the filing of, the consolidated tax returns of SCO's consolidated group which will include the income of the Group Business and the Contributed Company Group through the Effective Time and Newco will pay to SCO any amounts relating to such tax returns required by Section 12.3(c) prior to the filing of such tax returns. In order appropriately to apportion any taxes relating to a period that includes (but that would not, but for this Section 12.4(e) end on the Effective Time), the parties hereto will, to the extent permitted by applicable law, elect with the relevant taxing authority to treat for all purposes the Effective Time as the last day of a taxable period of any member of the Contributed Company Group. SCO shall, in respect of such returns, and Newco and the Contributed Company Group for returns with respect to the Post-Closing Period shall determine the income, gain, expenses, losses, deductions and credits of the Group Business and the Contributed Company Group in a manner (i) consistent with prior practice and actual operations in a manner that apportions such income, gain, expenses, loss, deductions and credits equitably from period to period and (ii) consistent with prior years. (f) The provisions of this Section 12 with respect to the consolidated groups or consolidated returns that include SCO or its Affiliates other than a Contributed Company shall apply mutatis mutandis with respect to combined or unitary groups or returns thereof. (g) Newco and SCO shall make (or indemnify the payor against) payments of estimated taxes (including amounts due with extensions) for which they are responsible under this Agreement in a timely manner. A payment or indemnity obligation under this Section 12 which is not made or satisfied when due shall accrue interest at the rate applicable to late payments of the pertinent Tax. Notwithstanding anything in this Section 12 to the contrary, a party shall not have to bear the cost of a Tax liability more than once (e.g., a payment of an estimated tax shall be credited against any payment due when the return is filed). (h) Except as provided in paragraph 12.4(e), for purposes of allocating a Tax for which a party is otherwise responsible under Section 12.3 or this Section 12.4, the portion of those Taxes that are attributable to the operations of the Group Business or of any member of the Contributed Company Group for a relevant period (the "Interim Period") shall be (i) in the case of a Tax that is not based on a net income, the total amount of such Tax for the Interim Period in question multiplied by a fraction, the numerator of which is the number of days in the Interim Period and the denominator of which is the total number of days in such period, and (ii) in the case of a Tax that is based on net income, the Tax that is due shall be an amount as equitably determined by the parties based upon a hypothetical closing of the books. (i) If Newco, a Contributed Company or any of its respective Affiliates receive any notice of the assertion of any Tax liability relating to a member of the Contributed Company Group for which SCO may be liable under this Agreement, Newco shall give prompt written notice thereof to SCO. (j) After the Closing, Newco and the Contributed Companies will provide reasonable access to all relevant Newco and Contributed Company Group books, records, agreements and memoranda, and provide such assistance to SCO as SCO and its Affiliates shall reasonably request, with respect to any federal, foreign, state, provincial or local Tax matters pertaining to the members of the Contributed Company Group for taxable periods or transactions on or prior to the Effective Time. Newco will notify SCO prior to disposition of such Tax records, if such disposition will take place within ten years after the Effective Time. After the Closing, the parties will provide reasonable access to all relevant SCO and Contributed Companies' books, records, agreements, memoranda and tax returns, and provide copies of such information and such assistance to the other party as it shall reasonably request, with respect to any federal, foreign, state, provincial or local Tax matters pertaining to the Contributed Assets and the Contributed Company Group for taxable periods or transactions on or prior to the Effective Time. (k) Notwithstanding anything in this Agreement to the contrary, SCO and Newco covenant and agree (unless there has been a final determination as defined in Section 1313(a) of the Code or any other event which conclusively establishes a contrary position) for all Tax purposes, including all Tax Returns and any Tax examinations, proceedings or controversies, to (and to cause any Affiliate or successor to its assets or businesses to) take

Other Tax Matters. (a) SCOThe Contributed Companies, the Contributing Companies, Newco and Caldera VERITAS will cooperate fully with each other in connection with the preparation of all returns and reports of Taxes, information returns, and all audit examinations of, or claims or assertions against, any member of the Contributed Company Group, in each case including but not limited to the furnishing or making available of records, books of account or other materials and appropriate personnel necessary or helpful to the defense against the assertions of any taxing authority. SCO STI and SSI shall, within ninety days a reasonable time after the Effective TimeTime but no later than 60 days prior to the deadline (including extensions) of any Tax return of Newco or its affiliates that includes the operations of the Group Business or the Contributed Company Group, use their best efforts to deliver to Newco a schedule listing the tax basis of each of the Contributed Stock and Assets, along with copies of supporting calculations, information and records. (b) Except as provided in Section 12.4(c13.5(c), in the event and to the extent that SCO STI or any member of an affiliated group of corporations (as defined in Section 1504 of the Internal Revenue Code or otherwiseCode) of which SCO STI is a member (other than any member of the Contributed Company Group) receives a refund or credit of Taxes for any taxable period that ends prior to the Effective Time or in respect of any period that includes, but does not end on, the Effective Time, the portion of such period ending on the Effective Time (the "PrePRE-Closing PeriodCLOSING PERIOD") which is attributable to the carry back of losses, credits or similar items from any Tax return of any member of the Contributed Company Group, and in any case, in respect of any taxable period that begins after the Effective Time or in respect of any period that includes, but does not end on the Effective Time, the portion of such period commencing on the day following the Effective Time (the "PostPOST-Closing PeriodCLOSING PERIOD"), SCO STI shall pay to Newco, net of any additional Tax payable by SCO STI or its Affiliates by reason of such carryback, the amount of such refund or credit (including any interest A-73 75 received thereon) or Tax reduction. In the event that any refund or credit of Taxes or Tax reductions for which a payment has been made pursuant to this Section 12.4(b) 13.5 subsequently is reduced or disallowed, the Contributed Companies and Newco shall indemnify and hold harmless SCO STI and its Affiliates for any Tax liability, including interest and penalties, assessed by reason of such reduction or disallowance. (c) In the event that an indemnified party receives a refund or credit relating to of Taxes for which the other party is required to indemnify the first party it has been indemnified pursuant to Section 12.3 13.4 of this Agreement (including, but not limited to VAT refunds)Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon). In the event that any refund or credit of Taxes for which a payment has been made pursuant to this Section 12.4(c13.5(c) subsequently is reduced or disallowed, the indemnifying party shall indemnify and hold harmless the indemnified party for any Tax liability, including interest and penalties, assessed by reason of such reduction or disallowance. (d) If any claim for Tax relating to the Group Business or the Contributed Company Group is asserted against SCO STI or SSI or any Affiliate for any Pre-Closing Period, SCO STI shall promptly notify Newco in writing of such fact. SCO STI, SSI and its their duly appointed representatives shall have the sole right to negotiate, resolve, settle or contest any such claim for Tax; provided, however, that they shall deal fairly and in good faith with respect to any claim for Tax which would require a payment by Newco to SCO STI or its Affiliates under Section 12.3(c13.4(c) or this Section 12.4 and provided further, that with respect to any claim which would require a payment by Newco or have a Material Adverse Effect on the Group Business, no settlement will be agreed to without Newco's prior written consent. Such consent shall not be unreasonably withheld. If Newco fails to provide STI with written consent within 30 days of a written request from STI, and submits a written objection the procedures in Section 7(c) of the Tax Allocation Agreement dated as of April 4, 1996 (the "TAX ALLOCATION AGREEMENT") shall be applied. Newco shall bear the legal and accounting costs and expenses incurred in contesting a matter for which it has withheld its consent. If any claim for Tax relating to the Contributed Company Group for any Post-Closing Period comes to the attention of SCOSTI, SCO STI will notify Newco promptly of such claims and will cooperate fully with Newco and the Contributed Company Group in the resolution of such claim. A failure to promptly notify pursuant to this Section 12.4(d13.6(d) shall not preclude another party's indemnification obligation. (e) SCO STI shall prepare any Tax returns (including any amendments thereto) of the members of the Contributed Company Group for all taxable periods that end, with respect to the Contributed Company Group, on or before the Effective Time (including any short period ending on the Effective Time) and which are due either before or after the Effective Time and shall deliver to Newco for signing by the appropriate party and filing, any Tax returns of the members of the Contributed Company Group (including any amendments thereto) with respect to any such period that have not been filed prior to the Effective Time. SCO STI shall deliver any such tax return or the portion thereof relating to the Group Business to Newco at least fifteen days prior to the date such tax return is due to be filed (taking into account any applicable extensions). SCO STI shall report for federal income tax purposes the operations of the Group Business and the Contributed Company Group for any short period ending on the Effective Time, and shall be responsible for the filing of, the consolidated tax returns of SCOSTI's consolidated group which will include the income of the Group Business and the Contributed Company Group through the Effective Time and Newco will pay to SCO STI any amounts relating to such tax returns required by Section 12.3(c13.4(c) prior to the filing of such tax returns. In order appropriately to apportion any taxes relating to a period that includes (but that would not, but for this A-74 76 Section 12.4(e13.5(e) end on the Effective Time), the parties hereto will, to the extent permitted by applicable law, elect with the relevant taxing authority to treat for all purposes the Effective Time as the last day of a taxable period of any member of the Contributed Company Group. SCO STI shall, in respect of such returns, and Newco and the Contributed Company Group for returns with respect to the Post-Closing Period shall determine the income, gain, expenses, losses, deductions and credits of the Group Business and the Contributed Company Group in a manner (i) consistent with prior practice and actual operations in a manner that apportions such income, gain, expenses, loss, deductions and credits equitably from period to period and (ii) consistent with prior years. STI and SSI shall not pay a "FSC" commission with respect to the Group Business without the prior written consent of Newco. (f) The tax returns described in Section 13.5(e) shall be prepared in accordance with the Tax Allocation Agreement except to the extent it is inconsistent with Section 13.5(e). In addition, the parties agree that for the taxable periods the Contributed Companies are included in a consolidated return with STI or SSI, the parties will compensate each other for the use of losses and credits in the amounts determined in accordance with the Tax Allocation Agreement. The provisions of this Section 12 13 with respect to the consolidated groups or consolidated returns that include SCO STI or its SSI or their Affiliates other than a Contributed Company shall apply mutatis mutandis with respect to combined or unitary groups or returns thereof. (g) Newco Newco, STI and SCO SSI shall make (or indemnify the payor against) payments of estimated taxes (including amounts due with extensions) for which they are responsible under this Agreement agreement in accordance with the Tax Allocation Agreement. Any Tax which is due (including estimated Taxes) on or prior to the Effective Time and which is the responsibility of Newco, shall, in lieu of requiring a timely mannerpayment by Newco prior to the Effective Time, be satisfied by a payment out of the Group Assets or the Group Business or after payment of such Tax by STI or SSI through an increase in the account balances owed by the Group Business or the Contributed Companies to STI or SSI, which increase in the obligation will be satisfied by Newco subsequent to the Closing. A payment or indemnity obligation under this Section 12 section 13 which is not made or satisfied when due shall accrue interest at the rate applicable to late payments of the pertinent Tax6% compounded daily. Notwithstanding anything in this Section 12 13 to the contrary, a party shall not have to bear the cost of a Tax liability more than once (e.g., e.g. a payment of an estimated tax shall be credited against any payment due when the return is filed). (h) Except as provided in paragraph 12.4(e13.5(e), for purposes of allocating a Tax for which a party is otherwise responsible under Section 12.3 or this Section 12.413.4, the portion of those Taxes that are attributable to the operations of the Group Business or of any member of the Contributed Company Group for a relevant period (the "Interim PeriodINTERIM PERIOD") shall be (i) in the case of a Tax that is not based on a net income, the total amount of such Tax for the Interim Period in question multiplied by a fraction, the numerator of which is the number of days in the Interim Period and the denominator of which is the total number of days in such period, and (ii) in the case of a Tax that is based on net income, the Tax that is due shall be an amount as equitably determined by the parties based upon a hypothetical closing of the books. (i) If Newco, a Contributed Company or any of its their respective Affiliates receive any notice of the assertion of any Tax liability relating to a member of the Contributed Company Group for which SCO STI or SSI may be liable under this Agreement, Newco shall give prompt written notice thereof to SCO.STI or SSI. A failure to promptly notify pursuant to this paragraph shall not preclude another party's indemnification obligation. A-75 77 (j) After the Closing, Newco and the Contributed Companies will provide reasonable access to all relevant Newco and the Contributed Company Group relevant books, records, agreements and memoranda, and provide such assistance to SCO STI and SSI as SCO STI, SSI and its their Affiliates shall reasonably request, with respect to any federal, foreign, state, provincial state or local Tax matters pertaining to the members of the Contributed Company Group for taxable periods or transactions on or prior to the Effective Time. Newco will notify SCO STI prior to disposition of such Tax records, if such disposition will take place within ten years after the Effective Time. After the Closing, the parties will provide reasonable access to all relevant SCO and Contributed Companies' books, records, agreements, memoranda and tax returns, and provide copies of such information and such assistance to the other party as it shall reasonably request, with respect to any federal, foreign, state, provincial or local Tax matters pertaining to the Contributed Assets and the Contributed Company Group for taxable periods or transactions on or prior to the Effective Time. (k) Notwithstanding anything in this Agreement to the contrary, SCO STI and Newco covenant and agree agree, (unless there has been a final determination as defined in Section 1313(a) of the Code or any other event which conclusively establishes a contrary position) for all Tax purposes, purposes including all Tax Returns and any Tax examinations, proceedings or controversies, to (and to cause any Affiliate or successor to its their assets or businesses to) taketake each of the positions set forth below (and not to take any position inconsistent therewith) and to use good faith and reasonable best efforts to defend such positions: (i) The Merger (A) will qualify as a tax-free reorganization described in Section 368(a) of the Code and (B) when taken together with the Seagate Transaction, will qualify as a tax free transfer of the stock of VERITAS to Newco governed by Section 351(a) of the Code. (ii) The Seagate Transaction will qualify as a transfer of the Contributed Stock and Contributed Assets to Newco governed by Section 351(a) of the Code.

Other Tax Matters. (a) SCOThe Contributed Companies, the Contributing Companies, Newco and Caldera VERITAS will cooperate fully with each other in connection with the preparation of all returns and reports of Taxes, information returns, and all audit examinations of, or claims or assertions against, any member of the Contributed Company Group, in each case including but not limited to the furnishing or making available of records, books of account or other materials and appropriate personnel necessary or helpful to the defense against the assertions of any taxing authority. SCO STI and SSI shall, within ninety days a reasonable time after the Effective TimeTime but no later than 60 days prior to the deadline (including extensions) of any Tax return of Newco or its affiliates that includes the operations of the Group Business or the Contributed Company Group, use their best efforts to deliver to Newco a schedule listing the tax basis of each of the Contributed Stock and Assets, along with copies of supporting calculations, information and records. (b) Except as provided in Section 12.4(c13.5(c), in the event and to the extent that SCO STI or any member of an affiliated group of corporations (as defined in Section 1504 of the Internal Revenue Code or otherwiseCode) of which SCO STI is a member (other than any member of the Contributed Company Group) receives a refund or credit of Taxes for any taxable period that ends prior to the Effective Time or in respect of any period that includes, but does not end on, the Effective Time, the portion of such period ending on the Effective Time (the "PrePRE-Closing PeriodCLOSING PERIOD") which is attributable to the carry back of losses, credits or similar items from any Tax return of any member of the Contributed Company Group, and in any case, in respect of any taxable period that begins after the Effective Time or in respect of any period that includes, but does not end on the Effective Time, the portion of such period commencing on the day following the Effective Time (the "PostPOST-Closing PeriodCLOSING PERIOD"), SCO STI shall pay to Newco, net of any additional Tax payable by SCO STI or its Affiliates by reason of such carryback, the amount of such refund or credit (including any interest received thereon) or Tax reduction. In the event that any refund or credit of Taxes or Tax reductions for which a payment has been made pursuant to this Section 12.4(b) 13.5 subsequently is reduced or disallowed, the Contributed Companies and Newco shall indemnify and hold harmless SCO STI and its Affiliates for any Tax liability, including interest and penalties, assessed by reason of such reduction or disallowance. (c) In the event that an indemnified party receives a refund or credit relating to of Taxes for which the other party is required to indemnify the first party it has been indemnified pursuant to Section 12.3 13.4 of this Agreement (including, but not limited to VAT refunds)Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon). In the event that any refund or credit of Taxes for which a payment has been made pursuant to this Section 12.4(c13.5(c) subsequently is reduced or disallowed, the indemnifying party shall indemnify and hold harmless the indemnified party for any Tax liability, including interest and penalties, assessed by reason of such reduction or disallowance. (d) If any claim for Tax relating to the Group Business or the Contributed Company Group is asserted against SCO STI or SSI or any Affiliate for any Pre-Closing Period, SCO STI shall promptly notify Newco in writing of such fact. SCO STI, SSI and its their duly appointed representatives shall have the sole right to negotiate, resolve, settle or contest any such claim for Tax; provided, however, that they shall deal fairly and in good faith with respect to any claim for Tax which would require a payment by Newco to SCO STI or its Affiliates under Section 12.3(c13.4(c) or this Section 12.4 and provided further, that with respect to any claim which would require a payment by Newco or have a Material Adverse Effect on the Group Business, no settlement will be agreed to without Newco's prior written consent. Such consent shall not be unreasonably withheld. If Newco fails to provide STI with written consent within 30 days of a written request from STI, and submits a written objection the procedures in Section 7(c) of the Tax Allocation Agreement dated as of April 4, 1996 (the "TAX ALLOCATION AGREEMENT") shall be applied. Newco shall bear the legal and accounting costs and expenses incurred in contesting a matter for which it has withheld its consent. If any claim for Tax relating to the Contributed Company Group for any Post-Closing Period comes to the attention of SCOSTI, SCO STI will notify Newco promptly of such claims and will cooperate fully with Newco and the Contributed Company Group in the resolution of such claim. A failure to promptly notify pursuant to this Section 12.4(d13.6(d) shall not preclude another party's indemnification obligation. (e) SCO STI shall prepare any Tax returns (including any amendments thereto) of the members of the Contributed Company Group for all taxable periods that end, with respect to the Contributed Company Group, on or before the Effective Time (including any short period ending on the Effective Time) and which are due either before or after the Effective Time and shall deliver to Newco for signing by the appropriate party and filing, any Tax returns of the members of the Contributed Company Group (including any amendments thereto) with respect to any such period that have not been filed prior to the Effective Time. SCO STI shall deliver any such tax return or the portion thereof relating to the Group Business to Newco at least fifteen days prior to the date such tax return is due to be filed (taking into account any applicable extensions). SCO STI shall report for federal income tax purposes the operations of the Group Business and the Contributed Company Group for any short period ending on the Effective Time, and shall be responsible for the filing of, the consolidated tax returns of SCOSTI's consolidated group which will include the income of the Group Business and the Contributed Company Group through the Effective Time and Newco will pay to SCO STI any amounts relating to such tax returns required by Section 12.3(c13.4(c) prior to the filing of such tax returns. In order appropriately to apportion any taxes relating to a period that includes (but that would not, but for this Section 12.4(e13.5(e) end on the Effective Time), the parties hereto will, to the extent permitted by applicable law, elect with the relevant taxing authority to treat for all purposes the Effective Time as the last day of a taxable period of any member of the Contributed Company Group. SCO STI shall, in respect of such returns, and Newco and the Contributed Company Group for returns with respect to the Post-Closing Period shall determine the income, gain, expenses, losses, deductions and credits of the Group Business and the Contributed Company Group in a manner (i) consistent with prior practice and actual operations in a manner that apportions such income, gain, expenses, loss, deductions and credits equitably from period to period and (ii) consistent with prior years. STI and SSI shall not pay a "FSC" commission with respect to the Group Business without the prior written consent of Newco. (f) The tax returns described in Section 13.5(e) shall be prepared in accordance with the Tax Allocation Agreement except to the extent it is inconsistent with Section 13.5(e). In addition, the parties agree that for the taxable periods the Contributed Companies are included in a consolidated return with STI or SSI, the parties will compensate each other for the use of losses and credits in the amounts determined in accordance with the Tax Allocation Agreement. The provisions of this Section 12 13 with respect to the consolidated groups or consolidated returns that include SCO STI or its SSI or their Affiliates other than a Contributed Company shall apply mutatis mutandis with respect to combined or unitary groups or returns thereof. (g) Newco Newco, STI and SCO SSI shall make (or indemnify the payor against) payments of estimated taxes (including amounts due with extensions) for which they are responsible under this Agreement agreement in accordance with the Tax Allocation Agreement. Any Tax which is due (including estimated Taxes) on or prior to the Effective Time and which is the responsibility of Newco, shall, in lieu of requiring a timely mannerpayment by Newco prior to the Effective Time, be satisfied by a payment out of the Group Assets or the Group Business or after payment of such Tax by STI or SSI through an increase in the account balances owed by the Group Business or the Contributed Companies to STI or SSI, which increase in the obligation will be satisfied by Newco subsequent to the Closing. A payment or indemnity obligation under this Section 12 section 13 which is not made or satisfied when due shall accrue interest at the rate applicable to late payments of the pertinent Tax6% compounded daily. Notwithstanding anything in this Section 12 13 to the contrary, a party shall not have to bear the cost of a Tax liability more than once (e.g., e.g. a payment of an estimated tax shall be credited against any payment due when the return is filed). (h) Except as provided in paragraph 12.4(e13.5(e), for purposes of allocating a Tax for which a party is otherwise responsible under Section 12.3 or this Section 12.413.4, the portion of those Taxes that are attributable to the operations of the Group Business or of any member of the Contributed Company Group for a relevant period (the "Interim PeriodINTERIM PERIOD") shall be (i) in the case of a Tax that is not based on a net income, the total amount of such Tax for the Interim Period in question multiplied by a fraction, the numerator of which is the number of days in the Interim Period and the denominator of which is the total number of days in such period, and (ii) in the case of a Tax that is based on net income, the Tax that is due shall be an amount as equitably determined by the parties based upon a hypothetical closing of the books. (i) If Newco, a Contributed Company or any of its their respective Affiliates receive any notice of the assertion of any Tax liability relating to a member of the Contributed Company Group for which SCO STI or SSI may be liable under this Agreement, Newco shall give prompt written notice thereof to SCOSTI or SSI. A failure to promptly notify pursuant to this paragraph shall not preclude another party's indemnification obligation. (j) After the Closing, Newco and the Contributed Companies will provide reasonable access to all relevant Newco and the Contributed Company Group relevant books, records, agreements and memoranda, and provide such assistance to SCO STI and SSI as SCO STI, SSI and its their Affiliates shall reasonably request, with respect to any federal, foreign, state, provincial state or local Tax matters pertaining to the members of the Contributed Company Group for taxable periods or transactions on or prior to the Effective Time. Newco will notify SCO STI prior to disposition of such Tax records, if such disposition will take place within ten years after the Effective Time. After the Closing, the parties will provide reasonable access to all relevant SCO and Contributed Companies' books, records, agreements, memoranda and tax returns, and provide copies of such information and such assistance to the other party as it shall reasonably request, with respect to any federal, foreign, state, provincial or local Tax matters pertaining to the Contributed Assets and the Contributed Company Group for taxable periods or transactions on or prior to the Effective Time. (k) Notwithstanding anything in this Agreement to the contrary, SCO STI and Newco covenant and agree agree, (unless there has been a final determination as defined in Section 1313(a) of the Code or any other event which conclusively establishes a contrary position) for all Tax purposes, purposes including all Tax Returns and any Tax examinations, proceedings or controversies, to (and to cause any Affiliate or successor to its their assets or businesses to) taketake each of the positions set forth below (and not to take any position inconsistent therewith) and to use good faith and reasonable best efforts to defend such positions: (i) The Merger (A) will qualify as a tax-free reorganization described in Section 368(a) of the Code and (B) when taken together with the Seagate Transaction, will qualify as a tax free transfer of the stock of VERITAS to Newco governed by Section 351(a) of the Code. (ii) The Seagate Transaction will qualify as a transfer of the Contributed Stock and Contributed Assets to Newco governed by Section 351(a) of the Code. (iii) None of the consideration issued in connection with the Seagate Transaction will be paid or issued for services or as a covenant not to compete. (l) STI and Newco agree to report to the other any communication from or with the Internal Revenue Service or any other Taxing Authority which relates in any way to the characterization of the transactions governed by this Agreement. Each of STI and Newco will file with its Federal income tax return for the taxable year in which the Merger and Seagate Transaction occurs (which tax return shall be timely filed) the information required by Treas. Reg. ss. 1. 351-3 and 1.368-3 and to provide each other upon request with a statement to the effect that such party has complied with this requirement after filing. STI, the Contributed Companies, and Newco also will maintain such permanent records as are required by Treas. Reg. xx.xx. 1.351-3(c) and 1.368-3.

Other Tax Matters. (a) SCO, Seagate and Newco and Caldera will cooperate fully with each other in connection with the preparation of all returns and reports of Taxes, information returns, and all audit examinations of, or claims or assertions against, any member of the Contributed Company Group, in each case including but not limited to the furnishing or making available of records, books of account or other materials and appropriate personnel necessary or helpful to the defense against the assertions of any taxing authority. SCO Seagate shall, within ninety days a reasonable time after the Effective TimeClosing Date but no later than 60 days prior to the deadline (including extensions) of any Tax return of Newco or its Affiliates that includes the operations of the Group Business or the Contributed Company Group, use its best efforts to deliver to Newco a schedule listing the tax basis of each of the Group Assets and the Contributed Stock and Assets, along with copies of supporting calculations, information and recordsStock. (b) Except as provided in Section 12.4(c13.5(c), in the event and to the extent that SCO STI or any member of an affiliated group of corporations (as defined in Section 1504 of the Internal Revenue Code or otherwiseCode) of which SCO STI is a member (other than any member of the Contributed Company Group) receives a refund or credit of Taxes for any taxable period that ends prior to the Effective Time Closing Date or in respect of any period that includes, but does not end on, the Effective Time, the portion of such period ending on the Effective Time (the "PrePRE-Closing PeriodCLOSING PERIOD") which is attributable to the carry back of losses, credits or similar items from any Tax return of any member of the Contributed Company Group, and in any case, in respect of any taxable period that begins after the Effective Time or in respect of any period that includes, but does not end on the Effective Time, the portion of such period commencing on the day following the Effective Time (the "Post-Closing Period"), SCO STI shall pay to Newco, net of any additional Tax payable by SCO STI or its Affiliates by reason of such carryback, the amount of such refund or credit (including any interest received thereon) or Tax reduction. In the event that any refund or credit of Taxes or Tax reductions for which a payment has been made pursuant to this Section 12.4(b) 13.5 subsequently is reduced or disallowed, the Contributed Companies and Newco shall indemnify and hold harmless SCO STI and its Affiliates for any Tax liability, including interest and penalties, assessed by reason of such reduction or disallowance. (c) In the event that an indemnified party receives a refund or credit relating to of Taxes for which the other party is required to indemnify the first party it has been indemnified pursuant to Section 12.3 13.4 of this Agreement (including, but not limited to VAT refunds)Agreement, such indemnified party agrees to pay to the indemnifying party the amount of such refund or credit (including any interest received thereon). In the event that any refund or credit of Taxes for which a payment has been made pursuant to this Section 12.4(c13.5(c) subsequently is reduced or disallowed, the indemnifying party shall indemnify and hold harmless the indemnified party for any Tax liability, including interest and penalties, assessed by reason of such reduction or disallowance. (d) If any claim for Tax relating to the Group Business or the Contributed Company Group is asserted against SCO or any Affiliate for any Pre-Closing Period, SCO shall promptly notify Newco in writing of such fact. SCO and its duly appointed representatives shall have the sole right to negotiate, resolve, settle or contest any such claim for Tax; provided, however, that they shall deal fairly and in good faith with respect to any claim for Tax which would require a payment by Newco to SCO or its Affiliates under Section 12.3(c) or this Section 12.4 and provided further, that with respect to any claim which would require a payment by Newco or have a Material Adverse Effect on the Group Business, no settlement will be agreed to without Newco's prior written consent. Such consent shall not be unreasonably withheld. Newco shall bear the legal and accounting costs and expenses incurred in contesting a matter for which it has withheld its consent. If any claim for Tax relating to the Contributed Company Group for any Post-Closing Period comes to the attention of SCO, SCO will notify Newco promptly of such claims and will cooperate fully with Newco and the Contributed Company Group in the resolution of such claim. A failure to promptly notify pursuant to this Section 12.4(d) shall not preclude another party's indemnification obligation. (e) SCO shall prepare any Tax returns (including any amendments thereto) of the members of the Contributed Company Group for all taxable periods that end, with respect to the Contributed Company Group, on or before the Effective Time (including any short period ending on the Effective Time) and which are due either before or after the Effective Time and shall deliver to Newco for signing by the appropriate party and filing, any Tax returns of the members of the Contributed Company Group (including any amendments thereto) with respect to any such period that have not been filed prior to the Effective Time. SCO shall deliver any such tax return or the portion thereof relating to the Group Business to Newco at least fifteen days prior to the date such tax return is due to be filed (taking into account any applicable extensions). SCO shall report for federal income tax purposes the operations of the Group Business and the Contributed Company Group for any short period ending on the Effective Time, and shall be responsible for the filing of, the consolidated tax returns of SCO's consolidated group which will include the income of the Group Business and the Contributed Company Group through the Effective Time and Newco will pay to SCO any amounts relating to such tax returns required by Section 12.3(c) prior to the filing of such tax returns. In order appropriately to apportion any taxes relating to a period that includes (but that would not, but for this Section 12.4(e) end on the Effective Time), the parties hereto will, to the extent permitted by applicable law, elect with the relevant taxing authority to treat for all purposes the Effective Time as the last day of a taxable period of any member of the Contributed Company Group. SCO shall, in respect of such returns, and Newco and the Contributed Company Group for returns with respect to the Post-Closing Period shall determine the income, gain, expenses, losses, deductions and credits of the Group Business and the Contributed Company Group in a manner (i) consistent with prior practice and actual operations in a manner that apportions such income, gain, expenses, loss, deductions and credits equitably from period to period and (ii) consistent with prior years. (f) The provisions of this Section 12 with respect to the consolidated groups or consolidated returns that include SCO or its Affiliates other than a Contributed Company shall apply mutatis mutandis with respect to combined or unitary groups or returns thereof. (g) Newco and SCO shall make (or indemnify the payor against) payments of estimated taxes (including amounts due with extensions) for which they are responsible under this Agreement in a timely manner. A payment or indemnity obligation under this Section 12 which is not made or satisfied when due shall accrue interest at the rate applicable to late payments of the pertinent Tax. Notwithstanding anything in this Section 12 to the contrary, a party shall not have to bear the cost of a Tax liability more than once (e.g., a payment of an estimated tax shall be credited against any payment due when the return is filed). (h) Except as provided in paragraph 12.4(e), for purposes of allocating a Tax for which a party is otherwise responsible under Section 12.3 or this Section 12.4, the portion of those Taxes that are attributable to the operations of the Group Business or of any member of the Contributed Company Group for a relevant period (the "Interim Period") shall be (i) in the case of a Tax that is not based on a net income, the total amount of such Tax for the Interim Period in question multiplied by a fraction, the numerator of which is the number of days in the Interim Period and the denominator of which is the total number of days in such period, and (ii) in the case of a Tax that is based on net income, the Tax that is due shall be an amount as equitably determined by the parties based upon a hypothetical closing of the books. (i) If Newco, a Contributed Company or any of its respective Affiliates receive any notice of the assertion of any Tax liability relating to a member of the Contributed Company Group for which SCO may be liable under this Agreement, Newco shall give prompt written notice thereof to SCO. (j) After the Closing, Newco and the Contributed Companies will provide reasonable access to all relevant Newco and Contributed Company Group books, records, agreements and memoranda, and provide such assistance to SCO as SCO and its Affiliates shall reasonably request, with respect to any federal, foreign, state, provincial or local Tax matters pertaining to the members of the Contributed Company Group for taxable periods or transactions on or prior to the Effective Time. Newco will notify SCO prior to disposition of such Tax records, if such disposition will take place within ten years after the Effective Time. After the Closing, the parties will provide reasonable access to all relevant SCO and Contributed Companies' books, records, agreements, memoranda and tax returns, and provide copies of such information and such assistance to the other party as it shall reasonably request, with respect to any federal, foreign, state, provincial or local Tax matters pertaining to the Contributed Assets and the Contributed Company Group for taxable periods or transactions on or prior to the Effective Time. (k) Notwithstanding anything in this Agreement to the contrary, SCO and Newco covenant and agree (unless there has been a final determination as defined in Section 1313(a) of the Code or any other event which conclusively establishes a contrary position) for all Tax purposes, including all Tax Returns and any Tax examinations, proceedings or controversies, to (and to cause any Affiliate or successor to its assets or businesses to) take