EXHIBIT 10.19
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement, dated as of July 1, 2002 (the "Agreement"),
entered into by and among New SAC, a Cayman Islands limited liability company
("New SAC"), and each of the entities listed on Schedule I hereto (the
"Subsidiaries").
R E C I T A L
WHEREAS, VERITAS Software Corporation, a Delaware corporation ("VERITAS"),
Seagate Technology, Inc., a Delaware corporation ("Old Seagate"), and Suez
Acquisition Company, a Cayman Islands limited liability company ("SAC"), are
parties to an Indemnification Agreement, dated as of March 29, 2000 (as amended
from time to time, the "Indemnification Agreement");
WHEREAS, New SAC and the Subsidiaries are parties to a Joinder Agreement,
dated as of November 22, 2000, whereby New SAC and the Subsidiaries agreed to be
bound by the terms of the Indemnification Agreement as if they were original
signatories thereto and each of them became a SAC Indemnitor (as defined in the
Indemnification Agreement) thereunder;
WHEREAS, pursuant to the Indemnification Agreement, each of the SAC
Indemnitors agreed to indemnify, defend and hold harmless VERITAS, Old Seagate
and their respective affiliates (collectively, the "VERITAS Indemnitees") from
and against certain Losses as they are incurred or suffered by any VERITAS
Indemnitee arising out of, in connection with or related to the liabilities,
events and circumstances set forth in Section 5(a) and Section 6(a) of the
Indemnification Agreement; and
WHEREAS, each of the respective board of directors or managing member, as
the case may be, of New SAC and each Subsidiary deems it to be advisable and in
the best interest of the respective companies that the parties hereto apportion
and allocate their respective liabilities and obligations under the
Indemnification Agreement, whenever arising, among themselves by means of a
reimbursement mechanism set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and provisions contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions
Capitalized terms used but not otherwise defined in this Agreement shall
have the meanings ascribed to such terms in the Indemnification Agreement.
2. Reimbursement Obligations pursuant to Section 5 of the Indemnification
Agreement
In the event that (a) any VERITAS Indemnitee makes a claim (a "Claim")
against a SAC Indemnitor (the "Paying Party") under Section 5 of the
Indemnification Agreement relating to a
loss that is attributable to, arises out of, relates to or is in connection with
(i) the ownership, operations or conduct of the current or former business,
properties, assets or liabilities of any other SAC Indemnitor (the "Responsible
Party"), (ii) the breach by such Responsible Party of any agreement, obligation,
covenant, representation or warranty with or to any VERITAS Indemnitee or (iii)
the enforcement by any VERITAS Indemnitee of its rights under Section 5 of the
Indemnification Agreement against such Responsible Party and (b) the Paying
Party makes any payment to the VERITAS Indemnitee, or otherwise performs,
fulfills or satisfies such Claim, then such Responsible Party shall reimburse
the Paying Party for the cost (without interest) of satisfying such Claim to the
extent (but only to the extent) that the Claim is attributable to the
Responsible Party.
3. Reimbursement Obligations pursuant to Section 6 of the Indemnification
Agreement
In the event that any VERITAS Indemnitee (a) makes a Claim against a Paying
Party under Section 6 of the Indemnification Agreement and (b) the Paying Party
makes any payment to the VERITAS Indemnitee, or otherwise performs, fulfills or
satisfies such Claim, then the claim shall be allocated as described in the next
paragraph and the Responsible Party shall reimburse the Paying Party for the
cost (without interest) of satisfying such Claim to the extent (but only to the
extent) that the Claim is allocated to the Responsible Party.
Seagate Technology HDD Holdings shall be the Responsible Party for the
first $125 million of aggregate Claims made pursuant to Section 6 of the
Indemnification Agreement and, thereafter, the Paying Party shall be entitled to
indemnification for such Claims from Seagate Technology HDD Holdings, Seagate
Technology SAN Holdings, Seagate Removable Storage Solutions Holdings and
Seagate Software (Cayman) Holdings, as Responsible Parties, on a pro-rata basis
in accordance with the portion of the purchase price allocated to such
Subsidiary (or to the assets held by such Subsidiary) as required by the Stock
Purchase Agreement by and among Suez Acquisition Company (Cayman) Limited,
Seagate Technology, Inc., and Seagate Software Holdings, Inc., dated March 29,
2000.
4. Reimbursement Procedures
(a) Request for Reimbursement
If any Paying Party shall determine in good faith that it is or may be
entitled to reimbursement under Section 2 or Section 3 hereof, such Paying Party
may, within 90 calendar days after payment to the VERITAS Indemnitee pursuant to
the Indemnification Agreement, deliver to any SAC Indemnitor that the Paying
Party reasonably believes to be a Responsible Party a written notice requesting
reimbursement from such person pursuant to Section 2 or Section 3 hereof (a
"Reimbursement Request") and specifying the basis for its request for
reimbursement and the amount for which such Paying Party reasonably believes it
is entitled to be reimbursed.
If the Paying Party does not make a Reimbursement Request within such
90-day period, such Paying Party shall be deemed to have waived its right to
reimbursement under Section 2 or
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Section 3 hereof and shall not be entitled to seek or obtain any reimbursement
from any other SAC Indemnitor upon the expiration of such 90-day period.
(b) Responses to Requests for Reimbursement
Upon receipt of a Reimbursement Request pursuant to Section 4(a) hereof,
the receiving party shall, within 30 calendar days after receipt of such
Reimbursement Request, either (i) reimburse the Paying Party such amount in cash
or other immediately available funds (or reach agreement with the Paying Party
as to a mutually agreeable alternative payment schedule) as set forth in the
Reimbursement Request or (ii) object to the claim for reimbursement or the
amount thereof by giving the Paying Party a written notice setting for the
grounds therefor (an "Objection Notice").
If the receiving party does not give an Objection Notice within such 30-day
period, the receiving party shall be deemed to have admitted that it is a
Responsible Party and shall be deemed to have acknowledged its liability for the
amount set forth in the Reimbursement Request, and the Paying Party may exercise
any and all of its rights under applicable law to collect such amount.
5. Dispute Resolution Procedures
(a) Good Faith Negotiation
In the event of a disagreement, controversy or dispute as to whether
payment was appropriately made, the identity of the Responsible Party or the
amount of any reimbursement to be made pursuant to Section 2 or Section 3 hereof
(a "Dispute"), the parties involved in such Dispute shall use their respective
best efforts to attempt to resolve such Dispute between or among them in good
faith. All negotiations pursuant to this Section 5(a) shall be confidential.
(b) Non-Binding Mediation
In the event that a Dispute remains unsettled on or after the 31st calendar
day after the receipt of an Objection Notice by the Paying Party despite good
faith negotiations by the disputing parties pursuant to the provisions of
Section 5(a) hereof, the parties to such Dispute shall, as promptly as
practicable (but, in any event, within 45 calendar days after the receipt of an
Objection Notice by the Paying Party), select one mutually agreed upon mediator
and submit the Dispute to non-binding mediation for a period of 60 calendar days
after the selection of such mediator, unless the parties mutually agree upon a
different time period. The parties to the Dispute shall participate in the
mediation in good faith and shall share equally in the costs thereof, except
that each party shall be responsible for its own attorney's fees and other
related costs and expenses. The mediator shall be disqualified as a witness,
consultant or expert for either party in any further proceedings related to the
Dispute. The mediator shall treat the offers, promises, conduct and statements
made in the course of the non-binding mediation (including pre-mediation and
post-mediation submissions to the mediator) as confidential and shall refrain
from disclosing such information except to the parties to such mediation.
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(c) Arbitration
In the event that the parties to the Dispute cannot agree upon a mediator
or resolve the Dispute within the time period provided for in Section 5(b)
hereof, the parties shall submit the Dispute to arbitration in Scotts Valley,
California, United States of America, using the English language and in
accordance with the Commercial Arbitration Rules then in effect of the American
Arbitration Association. The single arbitrator, who shall be experienced in the
matters that are the subject of the Dispute, shall have the authority to
determine the relative merits of the claims and defenses of the disputing
parties and shall have the authority to allocate between the parties the costs
of arbitration in such equitable manner as the arbitrator may determine.
Judgment upon the award so rendered may be entered in any court having
jurisdiction and shall be final and binding upon the parties.
6. Notices
All notices, requests, claims, demands and other communications (including
Reimbursement Requests and Objection Notices) made hereunder shall be in writing
and shall be deemed to have been duly given when delivered in person, by
verified telecopy, by expedited delivery service (such as Federal Express) or by
registered or certified mail (postage prepaid, return receipt requested) to the
chief executive officer, chief financial officer or secretary of the party
receiving such notices. Such notices shall be effective on the day following
receipt of delivery in person, by verified telecopy or by expedited delivery
service at the address noted under each signatory's name and subject to change
on written notice and shall be effective four days after mailing in accordance
with this Section 6.
7. Successors
Except as otherwise expressly provided herein, the provisions hereof shall
inure to the benefit of, and be binding upon, the successors and assigns of the
parties hereto.
8. Assignment
None of the parties hereto may assign any of its rights, obligations or
privileges hereunder (other than by operation of law) without the prior written
consent of the other parties hereto; provided, however, that any party hereto
may, without such consent, assign this Agreement and such party's rights
hereunder in connection with the transfer or sale of all or substantially all of
its business or assets.
9. Governing Law; Jurisdiction; Waiver of Jury Trial
This Agreement shall be governed by and construed in accordance with the
laws of the State of California, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof. Venue for any
legal action under this Agreement shall be in the federal or state courts
located in the State of California, and all parties hereto hereby submit
themselves to the jurisdiction of such courts for the purpose of this Agreement
and hereby waive trial by jury in any action, counterclaim or proceeding of any
kind arising under or
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out of or in connection with this Agreement, the negotiations leading thereto,
the inducements to the parties to enter into this Agreement and to the
transactions it contemplates.
10. Severability
In the event that any provision of this Agreement, or the application
thereof, becomes or is declared by a court of competent jurisdiction to be
illegal, void or unenforceable, the remainder of this Agreement will continue in
full force and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties hereto further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
11. Entire Agreement; Amendment
This Agreement sets forth the entire agreement between the parties hereto
with respect to the matters subject to this Agreement. Any provision of this
Agreement may be amended or modified in whole or in part at any time by an
agreement in writing among the parties hereto executed in the same manner as
this Agreement.
12. Waiver
No failure on the part of any party hereto to exercise, and no delay in
exercising, any right shall operate as a waiver thereof, nor shall any single or
partial exercise by any party hereto of any right preclude any other or future
exercise thereof or the exercise of any other right.
13. Descriptive Headings
The descriptive headings herein are inserted for convenience of reference
only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
14. Parties-in-Interest
This Agreement shall be binding upon and inure solely to the benefit of
each party hereto, and nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights, benefits or remedies of any
nature whatsoever under or by reason of this Agreement.
15. Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed on its behalf by its officers thereunto duly authorized, all as of
the day and year first above mentioned.
NEW SAC
By:
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Name:
Title:
Address:
SEAGATE TECHNOLOGY HOLDINGS
By:
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Name:
Title:
Address:
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SEAGATE TECHNOLOGY HDD HOLDINGS
By:
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Name:
Title:
Address:
SEAGATE TECHNOLOGY (US) HOLDINGS, INC.
By:
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Name:
Title:
Address:
SEAGATE TECHNOLOGY LLC
By: SEAGATE TECHNOLOGY (US) HOLDINGS, INC.,
its managing member
By:
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Name:
Title:
Address:
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SEAGATE US LLC
By: SEAGATE TECHNOLOGY LLC, its sole member
By: SEAGATE TECHNOLOGY (US) HOLDINGS, INC.,
its managing member
By:
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Name:
Title:
Address:
REDWOOD ACQUISITION CORPORATION
By:
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Name:
Title:
Address:
8
QUINTA CORPORATION
By:
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Name:
Title:
Address:
SEAGATE TECHNOLOGY INTERNATIONAL
By:
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Name:
Title:
Address:
9
SEAGATE TECHNOLOGY (THAILAND) LIMITED
By:
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Name:
Title:
By:
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Name:
Title:
Address:
SEAGATE TECHNOLOGY CHINA HOLDING COMPANY
By:
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Name:
Title:
Address:
10
SEAGATE TECHNOLOGY ASIA HOLDINGS
By:
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Name:
Title:
Address:
SEAGATE TECHNOLOGY (IRELAND)
By:
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Name:
Title:
Address:
SEAGATE TECHNOLOGY MEDIA (IRELAND)
By:
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Name:
Title:
Address:
00
XXXXXXX XXXXXXXXXX - XXXXXXX, X. DE X.X. DE C.V.
By:
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Name:
Title:
Address:
NIPPON SEAGATE INC.
By:
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Name:
Title:
Address:
SEAGATE SINGAPORE DISTRIBUTION PTE LTD
By:
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Name:
Title:
Address:
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SEAGATE DISTRIBUTION (UK) LIMITED
By:
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Name:
Title:
Address:
Witnessed by:
------------------------------------
Name:
Address:
SEAGATE TECHNOLOGY (XXXXXX) LIMITED
By:
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Name:
Title:
Address:
00
XXXXXXX XXXXXXXXXX XXX XXXX HOLDINGS
By:
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Name:
Title:
Address:
SEAGATE TECHNOLOGY (PHILIPPINES)
By:
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Name:
Title:
Address:
SEAGATE TECHNOLOGY SAN HOLDINGS
By:
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Name:
Title:
Address:
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XIOTECH CORPORATION
By:
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Name:
Title:
Address:
XIOTECH (CANADA) LTD.
By:
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Name:
Title:
Address:
SEAGATE REMOVABLE STORAGE SOLUTIONS HOLDINGS
By:
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Name:
Title:
Address:
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SEAGATE REMOVABLE STORAGE SOLUTIONS (US) HOLDINGS,
INC.
By:
--------------------------------------------
Name:
Title:
Address:
SEAGATE REMOVABLE STORAGE SOLUTIONS LLC
By: SEAGATE REMOVABLE STORAGE SOLUTIONS
(US) HOLDINGS, INC., its sole member
By:
--------------------------------------------
Name:
Title:
Address:
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SEAGATE RSS LLC
By: SEAGATE REMOVABLE STORAGE SOLUTIONS LLC,
its sole member
By: SEAGATE REMOVABLE STORAGE SOLUTIONS
(US) HOLDINGS, INC., its sole member
By:
--------------------------------------------
Name:
Title:
Address:
SEAGATE REMOVABLE STORAGE SOLUTIONS INTERNATIONAL
By:
--------------------------------------------
Name:
Title:
Address:
17
SEAGATE SOFTWARE (CAYMAN) HOLDINGS
By:
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Name:
Title:
Address:
CRYSTAL DECISIONS, INC. (FORMERLY SEAGATE SOFTWARE
INFORMATION MANAGEMENT GROUP HOLDINGS, INC.)
By:
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Name:
Title:
Address:
CRYSTAL DECISIONS, CORP (FORMERLY SEAGATE SOFTWARE
INFORMATION MANAGEMENT GROUP (CANADA), INC.)
By:
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Name:
Title:
Address:
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CRYSTAL DECISIONS (JAPAN) K.K. (FORMERLY NIPPON
SEAGATE SOFTWARE K.K.)
By:
--------------------------------------------
Name:
Title:
Address:
SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP
HOLDINGS BV
By:
--------------------------------------------
Name:
Title:
Address:
CRYSTAL DECISIONS (SINGAPORE) PTE LTD
(FORMERLY SEAGATE SOFTWARE PTE LTD)
By:
--------------------------------------------
Name:
Title:
Address:
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CRYSTAL DECISIONS (UK) LIMITED (FORMERLY SEAGATE
SOFTWARE INFORMATION MANAGEMENT GROUP LIMITED)
By:
--------------------------------------------
Name:
Title:
Address:
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SCHEDULE I
Seagate Technology Holdings
Seagate Technology HDD Holdings
Seagate Technology (US) Holdings, Inc.
Seagate Technology LLC
Seagate US LLC
Redwood Acquisition Corporation
Quinta Corporation
Seagate Technology International
Seagate Technology (Thailand) Limited
Seagate Technology China Holding Company
Seagate Technology Asia Holdings
Seagate Technology (Ireland)
Seagate Technology Media (Ireland)
Seagate Technology - Xxxxxxx S. de X.X. de C.V.
Nippon Seagate Inc.
Seagate Singapore Distribution Pte Ltd
Seagate Distribution (UK) Limited
Seagate Technology (Xxxxxx) Limited
Seagate Technology Far East Holdings
Seagate Technology (Philippines)
Seagate Technology SAN Holdings
Xiotech Corporation
Xiotech (Canada) Ltd.
Seagate Removable Storage Solutions Holdings
Seagate Removable Storage Solutions (US) Holdings, Inc.
Seagate Removable Storage Solutions LLC
Seagate RSS LLC
Seagate Removable Storage Solutions International
Seagate Software (Cayman) Holdings
Crystal Decisions, Inc.
Crystal Decisions, Corp
Crystal Decisions (Japan) K.K.
Seagate Software Information Management Group Holdings BV
Crystal Decisions (Singapore) Pte Ltd
Crystal Decisions (UK) Limited
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