Exhibit 10.22.5
July 18, 2003
Crystal Decisions, Inc.
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Ladies and Gentlemen:
Reference is made to (i) that certain Agreement and Plan of Merger
dated as of July 18, 2003 by and among Business Objects S.A. ("Parent"), Borg
Merger Sub I, Inc., a Delaware corporation and a direct wholly owned subsidiary
of Parent ("Merger Sub 1"), Borg Merger Sub II, Inc., a Delaware corporation and
a direct wholly owned subsidiary of Parent ("Merger Sub 2"), Borg Merger Sub
III, Inc., a Delaware corporation and a direct wholly owned subsidiary of Parent
("Merger Sub 3" and, collectively with Merger Sub 1 and Merger Sub 2, "Merger
Subs"), Seagate Software (Cayman) Holdings, an exempted company incorporated in
the Cayman Islands with limited liability (together with any successor by
deregistration and domestication, "HoldCo") and Crystal Decisions, Inc. (the
"Company") (the "Merger Agreement") pursuant to which, subject to the
satisfaction or waiver of the conditions therein, (1) Merger Sub 1 will merge
with and into HoldCo (the "HoldCo Merger"), (2) immediately following the HoldCo
Merger, the surviving corporation of the HoldCo Merger will merge with and into
Merger Sub 2 (the "Second HoldCo Merger", (3) immediately following the Second
HoldCo Merger, Merger Sub 3 will merge with and into the Company (the "Company
Merger"), and (4) immediately following the Company Merger, the surviving
corporation of the Company Merger will merge with and into the surviving
corporation of the Second HoldCo Merger and (ii) that certain Reimbursement
Agreement dated as of July 1, 2002 by and among New SAC, a Caymans Islands
limited liability company ("New SAC") and each of the other entities identified
therein (the "Reimbursement Agreement"). Capitalized terms used but not defined
herein shall have the meaning set forth in the Reimbursement Agreement or, if
not defined therein, in the Merger Agreement.
To induce ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Subs to enter into the Merger Agreement,
New SAC has agreed to enter into this letter agreement providing for New SAC to
indemnify the Company, HoldCo and their successors with respect to certain
potential liabilities of the Company and HoldCo under the Reimbursement
Agreement as further described herein. Accordingly, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, New
SAC and the Company hereby agree as follows:
1. New SAC shall indemnify, defend and hold harmless each of the
Company and HoldCo (including any successors by merger or otherwise) and their
respective affiliates (collectively, the "Indemnitees") from and against any
losses, damages, liabilities, costs, expenses, fees, penalties, fines,
judgments, settlements and claims of whatever kind and nature incurred by an
Indemnitee in respect of HoldCo's or the Company's reimbursement obligations
under Section 3 of the Reimbursement Agreement with respect to Claims made under
Section 6 of the Indemnification Agreement. All claims for indemnification
pursuant to this Section 1 must be asserted on or prior to March 31, 2006, and
New SAC shall have no indemnification obligations hereunder for any claims
asserted after such date.
Crystal Decisions, Inc. July 18, 2003
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2. Promptly after receipt by an Indemnitee of Reimbursement Request or
any other notice of any action or other proceeding with respect to which an
Indemnitee may be entitled to indemnification hereunder, such Indemnitee will
notify New SAC in writing and provide New SAC with a copy of such Reimbursement
Request or a description of the assertion of such claim or the commencement of
such action or other proceeding, provided that the failure so to notify New SAC
shall not relieve New SAC from any liability which it may have hereunder except
to the extent that such failure has prejudiced New SAC. New SAC shall have the
right, at its expense, to control the response to such Reimbursement Request and
the resolution of any Dispute with respect thereto as well as any defense of any
such other claim, action or other proceeding, and each Indemnitee shall
cooperate with New SAC with respect thereto as reasonably requested by New SAC.
Each Indemnitee shall agree to any settlement, compromise or discharge of any
Dispute or any such other claim, action or other proceeding that New SAC
recommends that by its terms obligates New SAC to pay the full amount of the
liability with respect to such Dispute, claim, action or other proceeding and
that releases such Indemnitee in full with respect to such Dispute, claim,
action or other proceeding.
3. This letter agreement shall become effective upon the consummation
of the HoldCo Merger as contemplated by the Merger Agreement and prior to such
time shall have no force or effect. If, the Merger Agreement is terminated prior
to the Closing Date, this letter agreement shall terminate without any further
action of the parties hereto and no party shall have any liability to any other
with respect to the provisions contained herein.
4. The provisions hereof shall inure to the benefit of HoldCo and its
successors, and shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns. This letter agreement will
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 law thereof. In addition, each of the parties hereto
(a) consents to submit itself to the personal jurisdiction of any federal or
state court located in the state of California in the event any dispute arises
out of this letter agreement or any of the other transactions contemplated by
this letter agreement, (b) agrees that it will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any such
court and (c) agrees that it will not bring any action relating to this letter
agreement or any of the other transactions contemplated by this letter agreement
in any court other than a state or federal court sitting in the State of
California.
5. EACH OF NEW SAC AND THE COMPANY HEREBY WAIVES TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTERS (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS LETTER AGREEMENT.
6. This letter agreement constitutes the entire agreement between New
SAC and the Company with respect to the matters herein and supersedes all prior
agreements and understandings between them with respect thereto.
7. Notwithstanding anything to the contrary contained in this letter
agreement, New SAC shall not be liable for any indirect, consequential or
punitive damages related to or arising in connection with any indemnification in
this letter agreement.
Crystal Decisions, Inc. July 18, 2003
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Please acknowledge your agreement to and acceptance of the terms of
this letter agreement by signing in the space provided below. This letter
agreement may be executed in one or more counterparts for the convenience of the
parties hereto, each of which shall be deemed an original and all of which
together will constitute one and the same instrument.
Sincerely yours,
NEW SAC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Acknowledged and agreed:
CRYSTAL DECISIONS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer