Exhibit 2.3
EXECUTION COPY
INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT
BETWEEN
ADAPTEC, INC.
AND
ROXIO, INC.
MAY 5, 2001
TABLE OF CONTENTS
PAGE
ARTICLE I. MUTUAL RELEASES; INDEMNIFICATION...........................................................................1
Section 1.1. Release of Pre-Closing Claims...................................................................1
Section 1.2. Indemnification by Roxio........................................................................2
Section 1.3. Indemnification by Adaptec......................................................................3
Section 1.4. Indemnification With Respect to Environmental Actions and Conditions............................3
Section 1.5. Procedures for Defense, Settlement and Indemnification of Third Party Claims....................4
Section 1.6. Additional Matters..............................................................................5
Section 1.7. Survival of Indemnities.........................................................................6
Section 1.8. Other Agreements Evidencing Indemnification Obligations.........................................6
ARTICLE II. INSURANCE MATTERS.........................................................................................6
Section 2.1. Roxio Insurance Coverage After the Separation Date..............................................6
Section 2.2. Cooperation and Agreement Not to Release Carriers...............................................6
Section 2.3. Procedures With Respect to Insured Roxio Liabilities............................................7
Section 2.4. Cooperation.....................................................................................7
Section 2.5. No Assignment or Waiver.........................................................................7
Section 2.6. No Liability....................................................................................8
Section 2.7. Further Agreements..............................................................................8
Section 2.8. Matters Governed by Employee Matters Agreement..................................................8
ARTICLE III. DISPUTE RESOLUTION.......................................................................................8
Section 3.1. Negotiation.....................................................................................8
Section 3.2. Proceedings.....................................................................................9
Section 3.3. Continuity of Service and Performance...........................................................9
ARTICLE IV. MISCELLANEOUS.............................................................................................9
Section 4.1. Entire Agreement................................................................................9
Section 4.2. Governing Law...................................................................................9
Section 4.3. Notices........................................................................................10
Section 4.4. Counterparts...................................................................................11
Section 4.5. Binding Effect; Assignment.....................................................................11
Section 4.6. Severability...................................................................................11
Section 4.7. Waiver of Breach...............................................................................11
Section 4.8. Amendment and Execution........................................................................11
Section 4.9. Authority......................................................................................12
Section 4.10. Descriptive Headings...........................................................................12
Section 4.11. Gender and Number..............................................................................12
Section 4.12. Additional Assurances..........................................................................12
Section 4.13. Force Majeure..................................................................................12
ARTICLE V. DEFINITIONS...............................................................................................13
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 5.1. Adaptec Business...............................................................................13
Section 5.2. Adaptec Facilities.............................................................................13
Section 5.3. Adaptec Group..................................................................................13
Section 5.4. Adaptec Indemnitees............................................................................13
Section 5.5. Action.........................................................................................13
Section 5.6. Assets.........................................................................................13
Section 5.7. Assignment Agreement...........................................................................13
Section 5.8. Employee Matters Agreement.....................................................................13
Section 5.9. Environmental Actions..........................................................................13
Section 5.10. Environmental Conditions.......................................................................14
Section 5.11. Environmental Laws.............................................................................14
Section 5.12. Form 10 Liabilities............................................................................14
Section 5.13. Form 10 Registration Statement.................................................................14
Section 5.14. Hazardous Materials............................................................................14
Section 5.15. Indemnifying Party.............................................................................14
Section 5.16. Indemnitee.....................................................................................15
Section 5.17. Insurance Policies.............................................................................15
Section 5.18. Insured Roxio Liability........................................................................15
Section 5.19. Liabilities....................................................................................15
Section 5.20. Person.........................................................................................15
Section 5.21. Pre-Separation Third Party Site Liabilities....................................................15
Section 5.22. Release........................................................................................15
Section 5.23. Roxio Business.................................................................................15
Section 5.24. Roxio Contracts................................................................................16
Section 5.25. Roxio Facilities...............................................................................16
Section 5.26. Roxio Group....................................................................................16
Section 5.27. Roxio Indemnitees..............................................................................16
Section 5.28. Roxio Liabilities..............................................................................16
Section 5.29. Separation.....................................................................................16
Section 5.30. Separation Agreement...........................................................................16
Section 5.31. Separation Date................................................................................16
Section 5.32. Subsidiary.....................................................................................16
Section 5.33. Tax Sharing Agreement..........................................................................16
Section 5.34. Taxes..........................................................................................16
Section 5.35. Third Party Claim..............................................................................17
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INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT
This
Indemnification and Insurance Matters Agreement (this "AGREEMENT")
is entered into on May 5, 2001 between Adaptec, Inc., a Delaware corporation
("ADAPTEC"), and Roxio, Inc., a Delaware corporation ("ROXIO"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to such terms in ARTICLE V below. Adaptec and Roxio are sometimes
referred to herein individually as a "party" or collectively as the "parties."
RECITALS
WHEREAS, Adaptec and its Subsidiaries have transferred or will transfer
to Roxio and its Subsidiaries effective as of the Separation Date, substantially
all of the assets of the Roxio Business in accordance with the Separation
Agreement.
WHEREAS, the parties desire to set forth certain agreements regarding
indemnification and insurance.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I.
MUTUAL RELEASES; INDEMNIFICATION
SECTION 1.1. RELEASE OF PRE-CLOSING CLAIMS.
(a) ROXIO RELEASE. Except as provided in SECTION 1.1(c) to this
Agreement, effective as of the Separation Date, Roxio does hereby, for itself
and as agent for each member of the Roxio Group, remise, release and forever
discharge the Adaptec Indemnitees from any and all Liabilities whatsoever,
whether at law or in equity (including any right of contribution), whether
arising under any contract or agreement, by operation of law or otherwise,
existing or arising from any acts or events occurring or failing to occur or
alleged to have occurred or to have failed to occur or any conditions existing
or alleged to have existed on or before the Separation Date, including in
connection with the transactions and all other activities to implement any of
the Separation and the Distribution.
(b) ADAPTEC RELEASE. Except as provided in SECTION 1.1(c) to this
Agreement, effective as of the Separation Date, Adaptec does hereby, for itself
and as agent for each member of the Adaptec Group, remise, release and forever
discharge the Roxio Indemnitees from any and all Liabilities whatsoever, whether
at law or in equity (including any right of contribution), whether arising under
any contract or agreement, by operation of law or otherwise, existing or arising
from any acts or events occurring or failing to occur or alleged to have
occurred or to have failed to occur or any conditions existing or alleged to
have existed on or before the Separation Date, including in connection with the
transactions and all other activities to implement any of the Separation and the
Distribution.
(c) NO IMPAIRMENT. Nothing contained in SECTION 1.1(a) or (b) shall
impair any right of any Person arising under the Separation Agreement or any
other Ancillary Agreement (including this Agreement), in each case in accordance
with its terms.
(d) NO ACTIONS AS TO RELEASED CLAIMS. Roxio agrees, for itself and as
agent for each member of the Roxio Group, not to make any claim or demand, or
commence any Action asserting any claim or demand, including any claim of
contribution or any indemnification, against Adaptec or any member of the
Adaptec Group, or any other Person released pursuant to SECTION 1.1(a), with
respect to any Liabilities released pursuant to SECTION 1.1(a). Adaptec agrees,
for itself and as agent for each member of the Adaptec Group, not to make any
claim or demand, or commence any Action asserting any claim or demand, including
any claim of contribution or any indemnification, against Roxio or any member of
the Roxio Group, or any other Person released pursuant to SECTION 1.1(b), with
respect to any Liabilities released pursuant to SECTION 1.1(b).
(e) FURTHER INSTRUMENTS. At any time, at the request of any other
party, each party shall cause each member of its respective Group to execute and
deliver releases reflecting the provisions hereof.
SECTION 1.2. INDEMNIFICATION BY ROXIO. Subject to SECTION 1.4 or as
otherwise provided in this Agreement, Roxio shall, for itself and as agent for
each member of the Roxio Group, indemnify, defend (or, where applicable, pay the
defense costs for) and hold harmless the Adaptec Indemnitees from and against
any and all Liabilities that any third party seeks to impose upon the Adaptec
Indemnitees, or which are imposed upon the Adaptec Indemnitees, and that
(without duplication)
(i) primarily relate to, arise out of or result from the Roxio
Business prior to the Separation Date other than any Liability which arises out
of or results from the intentional and willful misconduct of an employee of the
Adaptec Group other than an employee who becomes an employee of the Roxio Group;
or that relate to, arise out of or result from any of the following items:
(ii) the Roxio Business after the Separation Date;
(iii) any Roxio Liability or any Roxio Contract other than any
Liability which arises out of or results from the intentional and willful
misconduct of an employee of the Adaptec Group prior to the Separation Date,
other than an employee who becomes an employee of the Roxio Group;
(iv) any breach by Roxio or any member of the Roxio Group of the
Separation Agreement or any of the Ancillary Agreements (including this
Agreement); and
(v) any Form 10 Liabilities.
This SECTION 1.2 shall not apply to:
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(i) any amounts recovered from any third party and/or covered by
any insurance policy by Adaptec in respect of the related loss;
(ii) any Liability created under federal or state securities laws
arising from or related to statements made by Adaptec in its filings with the
United States Securities and Exchange Commission or press releases issued by
Adaptec addressing the Roxio Business; or
(iii) any Liability indemnified under SECTION 1.4.
SECTION 1.3. INDEMNIFICATION BY ADAPTEC. Except as otherwise provided
in this Agreement, Adaptec shall, for itself and as agent for each member of the
Adaptec Group, indemnify, defend (or, where applicable, pay the defense costs
for) and hold harmless the Roxio Indemnitees from and against any and all
Liabilities that any third party seeks to impose upon the Roxio Indemnitees, or
which are imposed upon the Roxio Indemnitees, and that (without duplication)
(i) relate to, arise out of or result from the Roxio Business
prior to the Separation Date to the extent that such items are not the
responsibility of Roxio as an Indemnifying Party pursuant to SECTION 1.2(i)-(iv)
above;
or that relate to, arise out of or result from any of the following items:
(ii) the Adaptec Business or any Liability of the Adaptec Group
other than the Roxio Liabilities;
(iii) any breach by Adaptec or any member of the Adaptec Group of
the Separation Agreement or any of the Ancillary Agreements (including this
Agreement).
This SECTION 1.3 shall not apply to any Liability indemnified under SECTION 1.4.
SECTION 1.4. INDEMNIFICATION WITH RESPECT TO ENVIRONMENTAL ACTIONS AND
CONDITIONS.
(a) INDEMNIFICATION BY ROXIO. Roxio shall, for itself and as agent for
each member of the Roxio Group, indemnify, defend and hold harmless the Adaptec
Indemnitees from and against any and all Environmental Actions relating to,
arising out of or resulting from Environmental Conditions (i) arising out of
operations occurring on and after the Separation Date at any of the Roxio
Facilities, or (ii) on any of the Roxio Facilities arising from an event causing
contamination that first occurs on or after the Separation Date (including any
Release of Hazardous Materials occurring after the Separation Date that migrates
to any of the Roxio Facilities), except to the extent that such Environmental
Conditions arise out of the operations of the Adaptec Group on and after the
Separation Date.
(b) INDEMNIFICATION BY ADAPTEC. Adaptec shall, for itself and as agent
for each member of the Adaptec Group, indemnify, defend and hold harmless the
Roxio Indemnitees from and against any and all Environmental Actions relating
to, arising out of or resulting from any of the following items:
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(i) Environmental Conditions (x) existing on, under, about or in
the vicinity of any of the Roxio Facilities prior to the Separation Date, or (y)
arising out of operations occurring on or before the Separation Date at any of
the Roxio Facilities;
(ii) Except as arising out of the operations of the Roxio Group
on and after the Separation Date, Environmental Conditions on, under, about or
arising out of operations occurring at any time, whether before or after the
Separation Date, at any of the Adaptec Facilities; and
(iii) Pre-Separation Third Party Site Liabilities.
(c) AGREEMENT REGARDING PAYMENTS TO INDEMNITEE. In the event an Indemnifying
Party makes any payment to or on behalf of an Indemnitee with respect to an
Environmental Action for which the Indemnifying Party is obligated to indemnify
under this SECTION 1.4, and the Indemnitee subsequently receives any payment
from a third party on account of the same financial obligation covered by the
payment made by the Indemnifying Party for that Environmental Action or
otherwise diminishes the financial obligation, the Indemnitee will promptly pay
the Indemnifying Party the amount by which the payment made by the Indemnifying
Party, exceeds the actual cost of the financial obligation.
SECTION 1.5. PROCEDURES FOR DEFENSE, SETTLEMENT AND INDEMNIFICATION OF
THIRD PARTY CLAIMS.
(a) NOTICE OF CLAIMS. If a Adaptec Indemnitee or a Roxio Indemnitee (as
applicable) (an "INDEMNITEE") shall receive notice or otherwise learn of the
assertion by a Person (including any Governmental Authority) who is not a member
of the Adaptec Group or the Roxio Group of any claim or of the commencement by
any such Person of any Action (collectively, a "THIRD PARTY CLAIM") with respect
to which a party (an "INDEMNIFYING PARTY") may be obligated to provide
indemnification to such Indemnitee pursuant to SECTION 1.2, 1.3 or 1.4, or any
other section of the Separation Agreement or any Ancillary Agreement (including
this Agreement), Adaptec and Roxio (as applicable) will ensure that such
Indemnitee shall give such Indemnifying Party written notice thereof within 30
days after becoming aware of such Third Party Claim. Any such notice shall
describe the Third Party Claim in reasonable detail. Notwithstanding the
foregoing, the delay or failure of any Indemnitee or other Person to give notice
as provided in this SECTION 1.5(a) shall not relieve the related Indemnifying
Party of its obligations under this ARTICLE I, except to the extent that such
Indemnifying Party is actually and substantially prejudiced by such delay or
failure to give notice.
(b) DEFENSE BY INDEMNIFYING PARTY. Except as otherwise inconsistent
with the provisions of any applicable Insurance Policy, an Indemnifying Party
will manage the defense of and may settle or compromise any Third Party Claim.
Within 30 days after the receipt of notice from an Indemnitee in accordance with
SECTION 1.5(A) (or sooner, if the nature of such Third Party Claim so requires),
the Indemnifying Party shall notify the Indemnitee that the Indemnifying Party
will assume responsibility for managing the defense of such Third Party Claim,
which notice shall specify any reservations or exceptions.
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(c) DEFENSE BY INDEMNITEE. If an Indemnifying Party fails to assume
responsibility for managing the defense of a Third Party Claim, or fails to
notify an Indemnitee that it will assume responsibility as provided in Section
1.5(a), such Indemnitee may manage the defense of such Third Party Claim;
PROVIDED, HOWEVER, that the Indemnifying Party shall reimburse all such costs
and expenses in the event it is ultimately determined that the Indemnifying
Party is obligated to indemnify the Indemnitee with respect to such Third Party
Claim.
(d) NO SETTLEMENT BY INDEMNITEE WITHOUT CONSENT. Unless the
Indemnifying Party has failed to manage the defense of the Third Party Claim in
accordance with the terms of this Agreement, no Indemnitee may settle or
compromise any Third Party Claim without the consent of the Indemnifying Party.
(e) NO CONSENT TO CERTAIN JUDGMENTS OR SETTLEMENTS WITHOUT CONSENT.
Notwithstanding any provision of this SECTION 1.5, no party shall consent to
entry of any judgment or enter into any settlement of a Third Party Claim
without the consent of the other party (such consent not to be unreasonably
withheld) if the effect of such judgment or settlement is to (A) permit any
injunction, declaratory judgment, other order or other nonmonetary relief to be
entered, directly or indirectly, against the other party or (B) affect the other
party in a material fashion due to the allocation of Liabilities and related
indemnities set forth in the Separation Agreement, this Agreement or any other
Ancillary Agreement.
SECTION 1.6. ADDITIONAL MATTERS.
(a) COOPERATION IN DEFENSE AND SETTLEMENT. With respect to any Third
Party Claim that implicates both Roxio and Adaptec in a material fashion due to
the allocation of Liabilities, responsibilities for management of defense and
related indemnities set forth in the Separation Agreement, this Agreement or any
of the Ancillary Agreements, the parties agree to cooperate fully and maintain a
joint defense (in a manner that will preserve the attorney-client privilege with
respect thereto) so as to minimize such Liabilities and defense costs associated
therewith. The party that is not responsible for managing the defense of such
Third Party Claims shall, upon reasonable request, be consulted with respect to
significant matters relating thereto and may, if necessary or helpful, associate
counsel to assist in the defense of such claims.
(b) SUBROGATION. In the event of payment by or on behalf of any
Indemnifying Party to or on behalf of any Indemnitee in connection with any
Third Party Claim, such Indemnifying Party shall be subrogated to and shall
stand in the place of such Indemnitee, in whole or in part based upon whether
the Indemnifying Party has paid all or only part of the Indemnitee's Liability,
as to any events or circumstances in respect of which such Indemnitee may have
any right, defense or claim relating to such Third Party Claim against any
claimant or plaintiff asserting such Third Party Claim or against any other
person. Such Indemnitee shall cooperate with such Indemnifying Party in a
reasonable manner, and at the cost and expense of such Indemnifying Party, in
prosecuting any subrogated right, defense or claim.
(c) NOT APPLICABLE TO TAXES. This Agreement shall not apply to Taxes
(which are covered by the Tax Sharing Agreement).
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SECTION 1.7. SURVIVAL OF INDEMNITIES. Subject to SECTION 4.5, the
rights and obligations of the members of the Adaptec Group and the Roxio Group
under this ARTICLE I shall survive the sale or other transfer by any party of
any Assets or businesses or the assignment by it of any Liabilities or the sale
by any member of the Adaptec Group or the Roxio Group of the capital stock or
other equity interests of any Subsidiary to any Person.
SECTION 1.8. OTHER AGREEMENTS EVIDENCING INDEMNIFICATION OBLIGATIONS.
Adaptec hereby agrees to execute, for the benefit of any Roxio Indemnitee, such
documents as may be reasonably requested by such Roxio Indemnitee, evidencing
Adaptec's agreement that the indemnification obligations of Adaptec set forth in
this Agreement inure to the benefit of and are enforceable by such Roxio
Indemnitee. Roxio hereby agrees to execute, for the benefit of any Adaptec
Indemnitee, such documents as may be reasonably requested by such Adaptec
Indemnitee, evidencing Roxio's agreement that the indemnification obligations of
Roxio set forth in this Agreement inure to the benefit of and are enforceable by
such Adaptec Indemnitee.
ARTICLE II.
INSURANCE MATTERS
SECTION 2.1. ROXIO INSURANCE COVERAGE AFTER THE SEPARATION DATE. From
and after the Separation Date, Roxio shall be responsible for obtaining and
maintaining insurance programs for its risk of loss and such insurance
arrangements shall be separate and apart from Adaptec's insurance programs.
Notwithstanding the foregoing, Adaptec, upon the request of Roxio, shall use all
commercially reasonable efforts to assist Roxio in the transition to its own
separate insurance programs from and after the Separation Date, and shall
provide Roxio with any information that is in the possession of Adaptec and is
reasonably available and necessary to either obtain insurance coverages for
Roxio or to assist Roxio in preventing unintended self-insurance, in whatever
form.
SECTION 2.2. COOPERATION AND AGREEMENT NOT TO RELEASE CARRIERS. Each of
Adaptec and Roxio will share such information as is reasonably necessary in
order to permit the other to manage and conduct its insurance matters in an
orderly fashion. Each of Adaptec and Roxio, at the request of the other, shall
cooperate with and use commercially reasonable efforts to assist the other in
recoveries for claims made under any insurance policy for the benefit of any
insured party, and neither Adaptec nor Roxio, nor any of their Subsidiaries,
shall take any action which would intentionally jeopardize or otherwise
interfere with either party's ability to collect any proceeds payable pursuant
to any insurance policy. Except as otherwise contemplated by the Separation
Agreement, this Agreement or any Ancillary Agreement, after the Separation Date,
neither Adaptec nor Roxio shall (and shall ensure that no member of their
respective Groups shall), without the consent of the other, provide any
insurance carrier with a release, or amend, modify or waive any rights under any
such policy or agreement, if such release, amendment, modification or waiver
would adversely affect any rights or potential rights of any member of the other
Group thereunder. However, nothing in this SECTION 2.2 shall (A) preclude any
member of any Group from presenting any claim or from exhausting any policy
limit, (B) require any member of any Group to pay any premium or other amount or
to incur any Liability, or (C) require any member of any Group to renew, extend
or continue any policy in force.
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SECTION 2.3. PROCEDURES WITH RESPECT TO INSURED ROXIO LIABILITIES.
(a) REIMBURSEMENT. Adaptec shall seek Roxio's approval, which approval
shall not be unreasonably withheld, to incur attorneys fees, costs (including
internal costs), or any other amounts to pursue insurance recoveries from
Insurance Policies for insured Roxio Liabilities. Adaptec will ▇▇▇▇ Roxio and
Roxio will reimburse Adaptec on a monthly basis for all such amounts incurred to
pursue insurance recoveries from Insurance Policies for Insured Roxio
Liabilities.
(b) MANAGEMENT OF CLAIMS. Except as otherwise inconsistent with the
provisions of any applicable Insurance Policy, the defense of claims, suits or
actions giving rise to potential or actual Insured Roxio Liabilities will be
managed (in conjunction with Adaptec's insurers, as appropriate) by the party
that would have had responsibility for managing such claims, suits or actions
had such Insured Roxio Liabilities been Roxio Liabilities.
SECTION 2.4. COOPERATION. Adaptec and Roxio will cooperate with each
other in all respects, and they shall execute any additional documents which are
reasonably necessary, to effectuate the provisions of this ARTICLE II.
SECTION 2.5. NO ASSIGNMENT OR WAIVER. This Agreement shall not be
considered as an attempted assignment of any policy of insurance or as a
contract of insurance and shall not be construed to waive any right or remedy of
any member of the Adaptec Group or the Roxio Group in respect of any Insurance
Policy or any other contract or policy of insurance.
SECTION 2.6. NO LIABILITY. Roxio does hereby, for itself and as agent
for each other member of the Roxio Group, agree that no member of the Adaptec
Group or any Adaptec Indemnitee shall have any Liability whatsoever as a result
of the insurance policies and practices of Adaptec and its Subsidiaries as in
effect at any time prior to the Separation Date, including as a result of the
level or scope of any such insurance, the creditworthiness of any insurance
carrier, the terms and conditions of any policy, the adequacy or timeliness of
any notice to any insurance carrier with respect to any claim or potential claim
or otherwise.
SECTION 2.7. FURTHER AGREEMENTS. The Parties acknowledge that they
intend to allocate financial obligations without violating any laws regarding
insurance, self-insurance or other financial responsibility. If it is determined
that any action undertake pursuant to the Separation Agreement, this Agreement
or any Ancillary Agreement is violative of any insurance, self-insurance or
related financial responsibility law or regulation, the parties agree to work
together to do whatever is necessary to comply with such law or regulation while
trying to accomplish, as much as possible, the allocation of financial
obligations as intended in the Separation Agreement, this Agreement and any
Ancillary Agreement.
SECTION 2.8. MATTERS GOVERNED BY EMPLOYEE MATTERS AGREEMENT. This
ARTICLE II shall not apply to any insurance policies that are the subject of the
Employee Matters Agreement.
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ARTICLE III.
DISPUTE RESOLUTION
Resolution of any and all Disputes arising from or in connection with
this Agreement shall be exclusively governed by and settled in accordance with
the provisions of this ARTICLE III.
SECTION 3.1. NEGOTIATION. The parties shall make a good faith attempt
to resolve any Dispute arising out of or relating to this Agreement through
informal negotiation between appropriate representatives from each of Adaptec
and Roxio. If at any time either party feels that such negotiations are not
leading to a resolution of the Dispute, such party may send a notice to the
other party describing the Dispute and requesting a meeting of the senior
executives from each party. Within ten (10) business days after such notice is
given, each party shall select appropriate senior executives (e.g., director or
V.P. level) of each party who shall have the authority to resolve the matter and
shall meet to attempt in good faith to negotiate a resolution of the Dispute
prior to pursuing other available remedies. During the course of negotiations
under this SECTION 3.1, all reasonable requests made by one party to the other
for information, including requests for copies of relevant documents, will be
honored. The specific format for such negotiations will be left to the
discretion of the designated negotiating senior executives but may include the
preparation of agreed upon statements of fact or written statements of position
furnished to the other party. In the event that any Dispute arising out of or
related to this Agreement is not settled by the parties within thirty days after
the first meeting of the negotiating senior executives, either party may
commence litigation with respect to the Dispute. However, except as provided
below in SECTION 3.2, neither party shall commence litigation against the other
party to resolve the Dispute (i) until the parties try in good faith to settle
the Dispute by negotiation for at least thirty (30) days after the first meeting
of the negotiating senior executives or (ii) until forty (40) days after notice
of a Dispute is given by either party to the other party, whichever occurs
first.
SECTION 3.2. PROCEEDINGS. Any Dispute regarding the following is not
required to be negotiated prior to seeking relief from a court of competent
jurisdiction: breach of any obligation of confidentiality; infringement,
misappropriation, or misuse of any intellectual property right; or any other
claim where interim relief from the court is sought to prevent serious and
irreparable injury to a party. However, the parties shall make a good faith
effort to negotiate such Dispute, according to SECTION 3.1, while such court
action is pending.
SECTION 3.3. CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise
agreed in writing, the parties will continue to provide service and honor all
other commitments under this Agreement and each Ancillary Agreement during the
course of dispute resolution pursuant to the provisions of this ARTICLE III with
respect to all matters not subject to such dispute, controversy or claim.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1 ENTIRE AGREEMENT. This Agreement, the Master Separation
Agreement, the other Ancillary Agreements and the Exhibits and Schedules
referenced or attached hereto and
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thereto, constitute the entire agreement between the parties with respect to the
subject matter hereof and shall supersede all prior written and oral and all
contemporaneous oral agreements and understandings with respect to the subject
matter hereof.
SECTION 4.2. GOVERNING LAW. This Agreement shall be construed in
accordance with and all Disputes hereunder shall be governed by the laws of the
State of
California, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods. The Superior Court
of Santa ▇▇▇▇▇ County and/or the United States District Court for the Northern
District of
California, San ▇▇▇▇ Division, shall have jurisdiction and venue
over all Disputes between the parties that are permitted to be brought in a
court of law pursuant to SECTION 3.2.
SECTION 4.3. NOTICES. Any notice, demand, offer, request or other
communication required or permitted to be given by either party pursuant to the
terms of this Agreement shall be in writing and shall be deemed effectively
given the earlier of (i) when received, (ii) when delivered personally, (iii)
one (1) Business Day after being delivered by facsimile (with receipt of
appropriate confirmation), (iv) one (1) Business Day after being deposited with
a nationally recognized overnight courier service or (v) four (4) days after
being deposited in the U.S. mail, First Class with postage prepaid, and
addressed to the attention of:
IF TO ADAPTEC, INC.:
Adaptec, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President and General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
IF TO ROXIO, INC.:
Roxio, Inc.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich LLP
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Adaptec and Roxio may substitute a different address or facsimile number, from
time to time, if such substitute is provided to the intended notice recipient in
writing by notice given in the manner provided in this SECTION 4.3.
SECTION 4.4. COUNTERPARTS. This Agreement, including the other
documents referred to herein, may be executed in counterparts via facsimile or
otherwise, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
SECTION 4.5. BINDING EFFECT; ASSIGNMENT. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective legal
representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement. This Agreement may
be enforced separately by each member of the Adaptec Group and each member of
the Roxio Group. Except as herein specifically provided to the contrary, neither
party may assign this Agreement or any rights or obligations hereunder, without
the prior written consent of the other party, and any such assignment shall be
void; provided, however, either party (or its permitted successive assignees or
transferees hereunder) may assign or transfer this Agreement as a whole without
consent to an entity that succeeds to all or substantially all of the business
or assets of such party to which this Agreement relates.
SECTION 4.6. SEVERABILITY. The parties hereto have negotiated and
prepared the terms of this Agreement in good faith with the intent that each and
every one of the terms, covenants and conditions herein be binding upon and
inure to the benefit of the respective parties. Accordingly, if any one or more
of the terms, provisions, promises, covenants or conditions of this Agreement or
the application thereof to any person or circumstance shall be adjudged to any
extent invalid, unenforceable, void or voidable for any reason whatsoever by a
court of competent jurisdiction, such provision shall be as narrowly construed
as possible, and each and all of the remaining terms, provisions, promises,
covenants and conditions of this Agreement or their application to other persons
or circumstances shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law. To the extent this Agreement
is in violation of applicable law, then the parties agree to negotiate in good
faith to amend the Agreement, to the extent possible consistent with its
purposes, to conform to law.
SECTION 4.7. WAIVER OF BREACH. The waiver by either party hereto of a
breach or violation of any provision of this Agreement shall not operate as, or
be construed to constitute, a waiver of any subsequent breach of the same or
another provision hereof.
SECTION 4.8. AMENDMENT AND EXECUTION. This Agreement and amendments
hereto shall be in writing and executed in multiple copies via facsimile or
otherwise on behalf of Adaptec and Roxio by their respective duly authorized
officers and representatives. Each multiple copy shall be deemed an original,
but all multiple copies together shall constitute one and the same instrument.
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SECTION 4.9. AUTHORITY. Each of the parties hereto represents to the
other that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary
corporate or other actions, (c) it has duly and validly executed and delivered
this Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
SECTION 4.10. DESCRIPTIVE HEADINGS. The headings contained in this
Agreement and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. When a reference is made in this Agreement to an Article or a
Section, such reference shall be to an Article or Section of this Agreement
unless otherwise indicated.
SECTION 4.11. GENDER AND NUMBER. Whenever the context of this Agreement
requires, the gender of all words herein shall include the masculine, feminine
and neuter, and the number of all words herein shall include the singular and
plural.
SECTION 4.12. ADDITIONAL ASSURANCES. Except as may be specifically
provided herein to the contrary, the provisions of this Agreement shall be
self-operative and shall not require further agreement by the parties; provided,
however, at the request of either party, the other party shall execute such
additional instruments and take such additional acts as are reasonable, and as
the requesting party may reasonably deem necessary, to effectuate this
Agreement.
SECTION 4.13. FORCE MAJEURE. Neither party shall be liable or deemed to
be in default for any delay or failure in performance under this Agreement or
other interruption of service deemed to result, directly or indirectly, from
acts of God, civil or military authority, acts of public enemy, war, accidents,
explosions, earthquakes, floods, failure of transportation, strikes or other
work interruptions by either party's employees, or any other similar cause
beyond the reasonable control of either party unless such delay or failure in
performance is expressly addressed elsewhere in this Agreement.
ARTICLE V.
DEFINITIONS
SECTION 5.1. ADAPTEC BUSINESS. "ADAPTEC BUSINESS" has the meaning set
forth in Section 6.1 of the Separation Agreement.
SECTION 5.2. ADAPTEC FACILITIES. "ADAPTEC FACILITIES" means all of the
real property and improvements thereon owned or occupied at any time on or
before the Separation Date by any member of the Adaptec Group, whether for the
Adaptec Business or the Roxio Business, excluding the Roxio Facilities.
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SECTION 5.3. ADAPTEC GROUP. "ADAPTEC GROUP" means Adaptec, each
Subsidiary of Adaptec (other than any member of the Roxio Group) immediately
after the Separation Date and each Person that becomes a Subsidiary of Adaptec
after the Separation Date.
SECTION 5.4. ADAPTEC INDEMNITEES. "ADAPTEC INDEMNITEES" means Adaptec,
each member of the Adaptec Group and each of their respective directors,
officers and employees.
SECTION 5.5. ACTION. "ACTION" means any demand, action, suit,
countersuit, arbitration, inquiry, proceeding or investigation by or before any
federal, state, local, foreign or international governmental authority or any
arbitration or mediation tribunal.
SECTION 5.6. ASSETS. "ASSETS" has the meaning set forth in Section 5.4
of the Assignment Agreement.
SECTION 5.7. ASSIGNMENT AGREEMENT. "ASSIGNMENT AGREEMENT" means the
General Assignment and Assumption Agreement attached as Exhibit C to the
Separation Agreement.
SECTION 5.8. EMPLOYEE MATTERS AGREEMENT. "EMPLOYEE MATTERS AGREEMENT"
means the Employee Matters Agreement attached as Exhibit E to the Separation
Agreement.
SECTION 5.9. ENVIRONMENTAL ACTIONS. "ENVIRONMENTAL ACTIONS" means any
notice, claim, act, cause of action, order, decree or investigation by any third
party (including, without limitation, any Governmental Authority) alleging
potential liability (including potential liability for investigatory costs,
cleanup costs, governmental response costs, natural resources damages, damage to
flora or fauna caused by Environmental Conditions, real property damages,
personal injuries or penalties) arising out of, based on or resulting from the
Release of or exposure of any individual to any Hazardous Materials.
SECTION 5.10. ENVIRONMENTAL CONDITIONS. "ENVIRONMENTAL CONDITIONS"
means the presence in the environment, including the soil, groundwater, surface
water or ambient air, of any Hazardous Material at a level which exceeds any
applicable standard or threshold under any Environmental Law or otherwise
requires investigation or remediation (including, without limitation,
investigation, study, health or risk assessment, monitoring, removal, treatment
or transport) under any applicable Environmental Laws.
SECTION 5.11. ENVIRONMENTAL LAWS. "ENVIRONMENTAL LAWS" means all laws
and regulations of any Governmental Authority with jurisdiction that relate to
the protection of the environment (including ambient air, surface water, ground
water, land surface or subsurface strata) including laws and regulations
relating to the Release of Hazardous Materials, or otherwise relating to the
treatment, storage, disposal, transport or handling of Hazardous Materials, or
to the exposure of any individual to a Release of Hazardous Materials.
SECTION 5.12. FORM 10 LIABILITIES. "FORM 10 LIABILITIES" means any
Liabilities relating to, arising out of or resulting from any untrue statement
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact required to be stated therein or necessary to
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make the statements therein not misleading, with respect to all information
contained in the Form 10 Registration Statement or any information statement
relating to the Form 10 Registration Statement.
SECTION 5.13. FORM 10 REGISTRATION STATEMENT. "FORM 10 REGISTRATION
STATEMENT" has the meaning set forth in Section 6.15 of the Separation
Agreement.
SECTION 5.14. HAZARDOUS MATERIALS. "HAZARDOUS MATERIALS" means
chemicals, pollutants, contaminants, wastes, toxic substances, radioactive and
biological materials, hazardous substances, petroleum and petroleum products or
any fraction thereof.
SECTION 5.15. INDEMNIFYING PARTY. "INDEMNIFYING PARTY" has the meaning
set forth in Section 1.5(a) hereof.
SECTION 5.16. INDEMNITEE. "INDEMNITEE" has the meaning set forth in
Section 1.5(a) hereof.
SECTION 5.17. INSURANCE POLICIES. "INSURANCE POLICIES" means insurance
policies pursuant to which a Person makes a true risk transfer to an insurer.
SECTION 5.18. INSURED ROXIO LIABILITY. "Insured Roxio Liability" means
any Roxio Liability to the extent that it is covered under the terms of
Adaptec's Insurance Policies.
SECTION 5.19. LIABILITIES. "LIABILITIES" has the meaning set forth in
Section 5.21 of the Assignment Agreement.
SECTION 5.20. PERSON. "PERSON" means an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization and a governmental
entity or any department, agency or political subdivision thereof.
SECTION 5.21. PRE-SEPARATION THIRD PARTY SITE LIABILITIES.
"PRE-SEPARATION THIRD PARTY SITE LIABILITIES" means any and all Environmental
Actions arising out of Hazardous Materials found on, under or about any landfill
any waste, storage, transfer or recycling site and resulting from or arising out
of Hazardous Materials stored, treated, recycled disposed or otherwise handled
at such site prior to the Separation Date (whether for the operation of the
Roxio Business or for the operation of any past or presently (as of the date
hereof) existing Adaptec Business as operated on or before the Separation Date).
SECTION 5.22. RELEASE. "RELEASE" means any release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching
or migration into the indoor or outdoor environment, including, without
limitation, the movement of Hazardous Materials through ambient air, soil,
surface water, groundwater, wetlands, land or subsurface strata.
SECTION 5.23. ROXIO BUSINESS. "ROXIO BUSINESS" means the business and
operations of Roxio, as described in the IPO Registration Statement and except
as otherwise expressly provided herein, any terminated, divested or discontinued
businesses or operations that at the time of termination, divestiture or
discontinuation primarily related to the Roxio Business as then conducted.
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SECTION 5.24. ROXIO CONTRACTS. "ROXIO CONTRACTS" has the meaning set
forth in Section 5.30 of the Assignment Agreement.
SECTION 5.25. ROXIO FACILITIES. "ROXIO FACILITIES" means all of those
facilities to be transferred to Roxio on the Separation Date as set forth on
Schedule 1 to the Real Estate Matters Agreement.
SECTION 5.26. ROXIO GROUP. "ROXIO GROUP" has the meaning set forth in
Section 6.29 of the Separation Agreement.
SECTION 5.27. ROXIO INDEMNITEES. "ROXIO INDEMNITEES" means Roxio, each
member of the Roxio Group and each of their respective directors, officers and
employees.
SECTION 5.28. ROXIO LIABILITIES. "ROXIO LIABILITIES" has the meaning
set forth in Section 1.3 of the Assignment Agreement.
SECTION 5.29. SEPARATION. "SEPARATION" has the meaning set forth in the
Recitals of the Separation Agreement.
SECTION 5.30. SEPARATION AGREEMENT. "SEPARATION AGREEMENT" means the
First Amended and Restated Master Separation and Distribution Agreement dated as
of February 28, 2001, of which this is an Exhibit thereto.
SECTION 5.31. SEPARATION DATE. "SEPARATION DATE" has the meaning set
forth in Section 1.1 of the Separation Agreement.
SECTION 5.32. SUBSIDIARY. "SUBSIDIARY" has the meaning set forth in
Section 6.32 of the Separation Agreement.
SECTION 5.33. TAX SHARING AGREEMENT. "TAX SHARING AGREEMENT" means the
Tax Sharing Agreement, attached as EXHIBIT F to the Separation Agreement.
SECTION 5.34. TAXES. "TAXES" has the meaning set forth in the Tax
Sharing Agreement.
SECTION 5.35. THIRD PARTY CLAIM. "THIRD PARTY CLAIM" has the meaning
set forth in Section 1.5(a) of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties has caused this
Indemnification
and Insurance Matters Agreement to be executed on its behalf by its officers
thereunto duly authorized on the day and year first above written.
ADAPTEC, INC. ROXIO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ Wm. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: Wm. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------- -------------------------------
Title: President, Title: President and
Chief Executive Officer Chief Executive Officer
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[SIGNATURE PAGE TO
INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT]
