EXHIBIT 10.2
TAX SHARING AGREEMENT
This TAX SHARING AGREEMENT (this "Agreement"), is entered into as of
December 23, 2003 by and between U.S. Bancorp, a Delaware corporation
("Parent"), and Xxxxx Xxxxxxx Companies, a Delaware corporation and an indirect,
wholly owned subsidiary of Parent ("SpinCo").
W I T N E S S E T H
WHEREAS, Parent and SpinCo have entered into a Separation and
Distribution Agreement, dated as of the date hereof (the "SDA");
WHEREAS, Parent intends to distribute the stock of SpinCo in the
External Spin-Off (as defined below) to holders of shares of Parent Common Stock
(as defined in the SDA) and to effect certain related transactions;
WHEREAS, for U.S. federal income tax purposes, it is intended that each
of the Spin-Off-Related Transactions (as defined below) shall qualify as a
tax-free transaction under Sections 355 and/or 368(a)(1)(D) of the Internal
Revenue Code of 1986, as amended (the "Code");
WHEREAS, at the close of business on the Distribution Date (as defined
in the SDA), the taxable year of SpinCo shall close for U.S. federal income tax
purposes; and
WHEREAS, the parties hereto wish to provide for the payment of Income
Taxes and Other Taxes (each as defined herein) and entitlement to refunds
thereof, allocate responsibility and provide for cooperation in connection with
the filing of returns in respect of Income Taxes and Other Taxes, and provide
for certain other matters relating to Income Taxes and Other Taxes;
NOW, THEREFORE, in consideration of the premises and the
representations, covenants and agreements herein contained and intending to be
legally bound hereby, Parent and SpinCo hereby agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to them in the SDA. For
purposes of this Agreement, the following terms shall have the meanings set
forth below:
"Actually Realized" or "Actually Realizes" means, for purposes
of determining the timing of the incurrence of any Spin-Off Tax Liability,
Income Tax Liability or Other Tax Liability or the realization of a Refund (or
any related Income Tax or Other Tax cost or benefit) by a Person in respect of
any payment, transaction, occurrence or event, the time at which the amount of
Income Taxes or Other Taxes paid (or Refund realized) by such Person is
increased above or reduced below the amount of Income Taxes or Other Taxes that
such Person would have been required to pay (or Refund that such Person would
have realized) but for such payment, transaction, occurrence or event.
"Aggregate Spin-Off Tax Liabilities" means the sum of the
Spin-Off Tax Liabilities with respect to each Taxing Jurisdiction.
"Board Certification" means a certified copy of a resolution
of the SpinCo Board in which the SpinCo Board, after an investigation of the
facts and advice concerning the applicable law, finds and warrants to Parent
that (a) following the transaction at issue, one or more Persons will not have
acquired, and will not have the right to acquire, directly or indirectly, more
than 35% (by vote or value) of the outstanding Equity Securities of SpinCo or
any member of the SpinCo Group (determined immediately after such transaction)
taking into account all relevant issuances, redemptions or other acquisitions of
(and agreements to issue, redeem or otherwise acquire) Equity Securities (and
assuming the exercise or conversion of all such Equity Securities (if such
Equity Securities are options or warrants or similar exercisable or convertible
securities) and the closing of all such agreements) from the point in time two
years prior to the External Spin-Off to the date immediately following such
transaction and pursuant to any other transaction which is part of a plan or
series of related transactions (within the meaning of Section 355(e) of the
Code) that includes the External Spin-Off, (b) SpinCo will be the surviving
entity if such transaction is a merger (and the transaction is not a reverse
subsidiary merger in which SpinCo is the surviving entity) and (c) the facts and
conclusions contained in the resolution will be true and correct at the time the
transaction at issue closes.
"Business Day" means any day other than a Saturday, a Sunday
or a day on which banking institutions located in the State of Minnesota are
authorized or obligated by law or executive order to close.
"Cash Acquisition Merger" means a merger of a newly-formed
Subsidiary of SpinCo with a corporation, limited liability company, limited
partnership, general partnership or joint venture (in each case, not previously
owned, directly or indirectly, by SpinCo) solely for cash pursuant to which
SpinCo acquires such corporation, limited liability company, limited
partnership, general partnership or joint venture and no Equity Securities of
SpinCo or any SpinCo Subsidiary are issued, sold, redeemed or acquired, directly
or indirectly.
"Carryback" means the carryback of a Tax Attribute (including,
without limitation, a net operating loss, a net capital loss or a tax credit) by
a member of the SpinCo Group from a Post-Distribution Taxable Period to a
Pre-Distribution Taxable Period.
"Code" has the meaning set forth in the recitals of this
Agreement.
"Combined Return" means a consolidated, combined or unitary
Income Tax Return or Other Tax Return that actually includes, by election or
otherwise, one or more members of the Parent Group together with one or more
members of the SpinCo Group.
"Contribution" means those certain capital contributions to
SpinCo by PJC made in connection with the Internal Spin-Off.
"Distribution-Related Proceeding" means any Proceeding in
which the IRS, another Tax Authority or any other party to such Proceeding
asserts a position that could reasonably be expected to adversely affect the
Tax-Free Status of any of the Spin-Off-Related Transactions.
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"Equity Securities" means any stock or other equity securities
treated as stock for tax purposes, or options, warrants, rights, convertible
debt, or any other instrument or security that affords any Person the right,
whether conditional or otherwise, to acquire stock or to be paid an amount
determined by reference to the value of stock.
"External Spin-Off" means the pro rata distribution by Parent
of the stock of SpinCo to the holders of Parent Common Stock with respect to
such stock.
"Fifty-Percent or Greater Interest" has the meaning ascribed
to such term for purposes of Sections 355(d) and (e) of the Code.
"Final Determination" means the final resolution of liability
for any Income Tax or Other Tax, which resolution may be for a specific issue or
adjustment or for a taxable period, (a) by IRS Form 870 or 870-AD (or any
successor forms thereto), on the date of acceptance by or on behalf of the
taxpayer, or by a comparable form under the laws of a State, local, or foreign
taxing jurisdiction, except that a Form 870 or 870-AD or comparable form shall
not constitute a Final Determination to the extent that it reserves (whether by
its terms or by operation of law) the right of the taxpayer to file a claim for
Refund or the right of the Tax Authority to assert a further deficiency in
respect of such issue or adjustment or for such taxable period (as the case may
be); (b) by a decision, judgment, decree, or other order by a court of competent
jurisdiction, which has become final and unappealable; (c) by a closing
agreement or accepted offer in compromise under Sections 7121 or 7122 of the
Code, or a comparable agreement under the laws of a State, local, or foreign
taxing jurisdiction; (d) by any allowance of a Refund or credit in respect of an
overpayment of Income Tax or Other Tax, but only after the expiration of all
periods during which such Refund may be recovered (including by way of offset)
by the jurisdiction imposing such Income Tax or Other Tax; or (e) by any other
final disposition, including by reason of the expiration of the applicable
statute of limitations or by mutual agreement of the parties.
"Income Tax" (a) means (i) any foreign or any United States
federal, State or local tax, charge, fee, impost, levy or other assessment that
is based upon, measured by, or calculated with respect to (A) net income or
profits (including, but not limited to, any capital gains, gross receipts, or
minimum tax, and any tax on items of tax preference, but not including the
business and occupation taxes in the state of Washington and local jurisdiction
within the state of Washington, sales, use, value added, real property gains,
real or personal property, transfer or similar taxes), (B) multiple bases
(including, but not limited to, corporate franchise, doing business or
occupation taxes), if one or more of the bases upon which such tax may be based,
by which it may be measured, or with respect to which it may be calculated is
described in clause (a)(i)(A) of this definition, or (C) any net worth,
franchise or similar tax, in each case together with (ii) any interest and any
penalties, fines, additions to tax or additional amounts imposed by any Tax
Authority with respect thereto and (b) includes any transferee or successor
liability in respect of an amount described in clause (a) of this definition.
"Income Tax Benefit" means, with respect to the effect of any
Carryback on the Income Tax Liability of Parent or the Parent Group for any
taxable period, the excess of (a) the hypothetical Income Tax Liability of
Parent or the Parent Group for such taxable period, calculated as if such
Carryback had not been utilized but with all other facts unchanged over (b)
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the actual Income Tax Liability of Parent or the Parent Group for such taxable
period, calculated taking into account such Carryback (and treating a Refund as
a negative Income Tax Liability, for purposes of such calculation).
"Income Tax Liabilities" means all liabilities for Income
Taxes.
"Income Tax Return" means any return, report, filing,
statement, questionnaire, declaration or other document required to be filed
with a Tax Authority in respect of Income Taxes.
"Indemnified Party" means any Person seeking indemnification
pursuant to the provisions of this Agreement.
"Indemnifying Party" means any party hereto from which any
Indemnified Party is seeking indemnification pursuant to the provisions of this
Agreement.
"Independent Third Party" means a nationally recognized law
firm or any of the following accounting firms or their successors: Ernst & Young
LLP, KPMG LLP, Deloitte & Touche LLP and PricewaterhouseCoopers LLP.
"Internal Spin-Off" means the distribution by PJC of all the
stock of SpinCo to its sole shareholder, Parent.
"IRS" means the Internal Revenue Service of the United States.
"Losses" means any and all losses, liabilities, claims,
damages, obligations, payments, costs and expenses, matured or unmatured,
absolute or contingent, accrued or unaccrued, liquidated or unliquidated, known
or unknown (including, without limitation, the costs and expenses of any and all
Actions, threatened Actions, demands, assessments, judgments, settlements and
compromises relating thereto and attorneys' fees and any and all expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any such Actions or threatened actions).
"Other Tax Liabilities" means all liabilities for Other Taxes.
"Other Tax Returns" means any return, report, filing,
statement, questionnaire, declaration or other document required to be filed
with a Tax Authority in respect of Other Taxes.
"Other Taxes" means all forms of taxation, whenever created or
imposed, and whether of the United States of America or elsewhere, and whether
imposed by a local, municipal, governmental, State, federation or other body,
and without limiting the generality of the foregoing, shall include the business
and occupation taxes in the state of Washington and local jurisdiction within
the state of Washington, superfund, sales, use, ad valorem, value added,
transfer, recording, withholding, payroll, employment, excise, occupation,
premium or property taxes (in each case, together with any related interest,
penalties and additions to tax, or additional amounts imposed by any Tax
Authority thereon); provided, however, that Other Taxes shall not include any
Income Taxes.
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"Parent Consolidated Group" means the affiliated group of
corporations (within the meaning of Section 1504(a) of the Code without regard
to the exclusions in Section 1504(b)(1) through (8)) of which Parent is the
common parent (and any predecessor or successor to such affiliated group).
"Parent Group" means (a) Parent and each Person that is a
direct or indirect Subsidiary of Parent (including any Subsidiary of Parent that
is disregarded for U.S. federal Income Tax purposes (or for purposes of any
State, local, or foreign tax law)) immediately after the External Spin-Off after
giving effect to the Spin-Off-Related Transactions, (b) any corporation (or
other Person) that shall have merged or liquidated into Parent or any such
Subsidiary and (c) any predecessor or successor to any Person otherwise
described in this definition.
"Parent Separate Return" shall mean any Separate Return
required to be filed by Parent or any member of the Parent Group.
"Permitted Transaction" means any transaction that satisfies
the requirements of Sections 5(c)(i), 5(c)(ii) or 5(c)(iii).
"Person" means any individual, partnership, joint venture,
limited liability company, corporation, association, joint stock company, trust,
unincorporated organization or similar entity or a governmental authority or any
department or agency or other unit thereof.
"PJC" means U.S. Bancorp Xxxxx Xxxxxxx Companies, Inc., a
Delaware corporation.
"Post-Distribution Taxable Period" means a taxable period (or
portion thereof) that begins after the Distribution Date.
"Pre-Distribution Taxable Period" means a taxable period (or
portion thereof) that ends on or before the Distribution Date.
"Private Letter Ruling" means (a) any private letter ruling
issued by the IRS in connection with any of the Spin-Off-Related Transactions or
(b) any similar ruling issued by any Tax Authority other than the IRS in
connection with any of the Spin-Off-Related Transactions.
"Private Letter Ruling Documents" means (a) any Private Letter
Ruling, any request for a Private Letter Ruling submitted to the IRS, together
with the appendices and exhibits thereto and any supplemental filings or other
materials subsequently submitted to the IRS, in connection with the
Spin-Off-Related Transactions or (b) any similar filings submitted to any other
Tax Authority in connection with any such request for a Private Letter Ruling.
"Proceeding" means any audit or other examination, or judicial
or administrative proceeding relating to liability for, or Refunds or
adjustments with respect to, Income Taxes or Other Taxes.
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"Refund" means any refund of Income Taxes or Other Taxes,
including any reduction in Income Tax Liabilities or Other Tax Liabilities by
means of a credit, offset or otherwise.
"Representative" means with respect to a Person, such Person's
officers, directors, employees and other authorized agents.
"Restriction Period" means the period beginning on the date
hereof and ending on the second anniversary of the Distribution Date.
"Separate Return" means (a) in the case of any Income Tax
Return or Other Tax Return required to be filed by any member of the SpinCo
Group (including any consolidated, combined or unitary return), any such tax
return that does not include any member of the Parent Group and (b) in the case
of any Income Tax Return or Other Tax Return required to be filed by any member
of the Parent Group (including any consolidated, combined or unitary return),
any such tax return that does not include any member of the SpinCo Group.
"Settlement Statement" means a detailed reconciliation showing
the amount of cash that is to be exchanged between Parent and SpinCo in
settlement of all SpinCo Group current tax accounts as recorded on the SpinCo
general ledger for all Pre-Distribution Taxable Periods. Such amount shall be
computed as the sum of (i) the balance of the current income tax payable account
of the members of the SpinCo Group as of the Distribution Date and (ii) the
difference between (A) the deferred tax liability or deferred tax asset recorded
on the SpinCo general ledger as of the Distribution Date and (B) the deferred
tax liability or deferred tax asset recorded on the SpinCo general ledger as
adjusted for the pro forma Income Tax Returns described in Section 3.
"SpinCo Board" means the Board of Directors of SpinCo.
"SpinCo Business" means each trade or business actively
conducted (within the meaning of Section 355(b) of the Code) by SpinCo or any
member of the SpinCo Group immediately after the External Spin-Off, as set forth
in the Tax Opinion Documents.
"SpinCo Consolidated Group" means the affiliated group of
corporations (within the meaning of Section 1504(a) of the Code without regard
to the exclusions in Section 1504(b)(1) through (8)) of which SpinCo is the
common parent, determined immediately after the External Spin-Off (and any
predecessor or successor to such affiliated group other than the Parent
Consolidated Group).
"SpinCo Consolidated Tax Amount" means, for any
Pre-Distribution Taxable Period and the portion of any Straddle Period that ends
on the Distribution Date, the amount of (i) federal Income Tax that would be due
and payable by SpinCo if the SpinCo Group had filed a consolidated federal
Income Tax Return, or (ii) State or local Income Taxes that would be due and
payable by SpinCo or members of the SpinCo Group if the SpinCo Group or its
members had filed all relevant State or local Income Tax Returns in all
applicable jurisdictions on a separate, consolidated, combined or unitary basis,
in each case without any entity that is a member of the Parent Group. The
relevant SpinCo Consolidated Tax Amount shall be calculated: (i) as if SpinCo
were the common parent filing consolidated, combined or unitary
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returns with its eligible subsidiaries, (ii) as if the SpinCo Group had never
been included in the Parent Consolidated Group or any other group filing a
Combined Return, (iii) in the case of federal Income Taxes, applying the highest
marginal tax rate, in the case of State Income Taxes, applying the actual state
rate (or amount) for those States being calculated without regard to the Parent,
and in the case of Other Taxes, applying the highest applicable tax rate,, (iv)
by applying separately to the SpinCo Group any provisions of the Code that
require consolidated computations, such as Code Sections 1201-1212 and 1231, and
(v) treating gains or losses on intercompany transactions in the manner required
by Treasury Regulation Section 1.1502-13.
"SpinCo Group" means (a) SpinCo and each Person that is a
direct or indirect Subsidiary of SpinCo (including any Subsidiary of SpinCo that
is disregarded for U.S. federal Income Tax purposes (or for purposes of any
State, local, or foreign tax law)) immediately after the External Spin-Off after
giving effect to the Spin-Off-Related Transactions, (b) any corporation (or
other Person) that shall have merged or liquidated into SpinCo or any such
Subsidiary and (c) any predecessor or successor to any Person otherwise
described in this definition.
"SpinCo Group Member Transaction" means any transaction
described in Sections 5(b)(i) through 5(b)(vi) hereof, without regard to the
exceptions thereto, that is undertaken by a member of the SpinCo Group other
than SpinCo.
"SpinCo Separate Return" means any Separate Return required to
be filed by SpinCo or any member of the SpinCo Group, including, without
limitation any U.S. consolidated federal Income Tax Returns of the SpinCo
Consolidated Group required to be filed with respect to a Post-Distribution
Taxable Period.
"Spin-Off Tax Liabilities" means, with respect to any Taxing
Jurisdiction, the sum of (a) any increase in Income Tax Liability or Other Tax
Liability (or reduction in a Refund) Actually Realized as a result of any
corporate-level gain or income recognized with respect to the failure of any of
the Spin-Off-Related Transactions to qualify for Tax-Free Status under the
income tax law of such Taxing Jurisdiction pursuant to any settlement, Final
Determination, judgment, assessment, proposed adjustment or otherwise, (b)
interest on such amounts calculated pursuant to such Taxing Jurisdiction's laws
regarding interest on tax liabilities at the highest Underpayment Rate for
corporations in such Taxing Jurisdiction from the date such additional gain or
income was recognized until full payment with respect thereto is made pursuant
to Section 3 hereof (or in the case of a reduction in a Refund, the amount of
interest that would have been received on the foregone portion of the Refund but
for the failure of any of the Spin-Off-Related Transactions to qualify for
Tax-Free Status), and (c) any penalties actually paid to such Taxing
Jurisdiction that would not have been paid but for the failure of any of the
Spin-Off-Related Transactions to qualify for Tax-Free Status in such Taxing
Jurisdiction.
"Spin-Off-Related Transactions" means (i) the Contribution
together with the Internal Spin-Off and (ii) the External Spin-Off.
"Straddle Period" means any taxable period that begins before
the Distribution Date and ends after the Distribution Date.
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"Tax Attribute" means a consolidated, combined or unitary net
operating loss, net capital loss, unused investment credit, unused foreign tax
credit, or excess charitable contribution (as such terms are used in Treasury
Regulations 1.1502-79 and 1.1502-79A or comparable provisions of foreign, State
or local tax law), or a minimum tax credit or general business credit.
"Tax Authority" means a governmental authority (foreign or
domestic) or any subdivision, agency, commission or authority thereof or any
quasi-governmental or private body having jurisdiction over the assessment,
determination, collection or imposition of any Tax (including, without
limitation, the IRS).
"Tax Counsel" means tax counsel of recognized national
standing that is acceptable to Parent.
"Tax-Free Status" means the qualification of each of the
Spin-Off-Related Transactions, as the case may be, (a) as a transaction
described in Sections 355(a) and/or 368(a)(1)(D) of the Code, (b) as a
transaction in which the stock distributed thereby is qualified property for
purposes of Section 361(c) of the Code, and (c) as a transaction in which all of
Parent and the members of the Parent Group and SpinCo and the members of the
SpinCo Group recognize no income or gain other than intercompany items or excess
loss accounts taken into account pursuant to the Treasury Regulations
promulgated pursuant to Section 1502 of the Code.
"Taxing Jurisdiction" means the United States and any
government or governmental unit having jurisdiction to tax Parent or SpinCo or
any of their respective Affiliates.
"Tax Opinion" means the tax opinion issued by Tax Counsel in
connection with the Spin-Off-Related Transactions.
"Tax Opinion Documents" means the Tax Opinion and the
information and representations provided on behalf of Parent and SpinCo to Tax
Counsel in connection therewith.
"Tax-Related Losses" means:
(a) the Aggregate Spin-Off Tax Liabilities,
(b) all accounting, legal and other professional fees,
and court costs incurred in connection with any settlement, Final Determination,
judgment or other determination with respect to such Aggregate Spin-Off Tax
Liabilities, and
(c) all costs, expenses and damages associated with
stockholder litigation or controversies and any amount paid by Parent or SpinCo
in respect of the liability of shareholders, whether paid to shareholders or to
the IRS or any other Tax Authority payable by Parent or SpinCo or their
respective Affiliates, in each case, resulting from the failure of any of the
Spin-Off-Related Transactions to qualify for Tax-Free Status.
"Underpayment Rate" means the annual rate of interest
described in Section 6621(c) of the Code for large corporate underpayments of
Income Tax (or similar
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provision of State, local, or foreign Income Tax law, as applicable), as
determined from time to time.
"Unqualified Tax Opinion" means an unqualified opinion of Tax
Counsel on which Parent may rely to the effect that a transaction will not
disqualify any of the Spin-Off-Related Transactions from Tax-Free Status,
assuming that the Spin-Off-Related Transactions would have qualified for
Tax-Free Status if such transaction did not occur.
2. FILING OF TAX RETURNS; PAYMENT OF TAXES.
(a) Filing of Tax Returns; Payment of Income Taxes and
Other Taxes.
(i) Parent Consolidated Returns; Other Combined
Returns. Parent shall prepare and file or cause to be prepared and filed (A) all
U.S. consolidated federal Income Tax Returns of the Parent Consolidated Group
and (B) all other Combined Returns. Parent shall pay, or cause to be paid, and
shall be responsible for, any and all Income Taxes and Other Taxes due or
required to be paid with respect to or required to be reported on any such
Income Tax Return or Other Tax Return (in each case, including any increase in
such Income Tax Liabilities or Other Tax Liabilities as a result of a Final
Determination).
(ii) Parent Separate Returns. Parent shall
prepare and file or cause to be prepared and filed all Parent Separate Returns.
Parent shall pay, or cause to be paid, and shall be responsible for, any and all
Income Taxes or Other Taxes due or required to be paid with respect to or
required to be reported on any Parent Separate Return (including any increase in
such Income Tax Liabilities or Other Tax Liabilities as a result of a Final
Determination).
(iii) SpinCo Separate Returns.
(A) Parent shall prepare and file or
cause to be prepared and filed all SpinCo Separate Returns that are Income Tax
Returns for Pre-Distribution Taxable Periods or for Straddle Periods. Parent
shall pay, or cause to be paid, and shall be responsible for, any and all Income
Taxes due or required to be paid with respect to or required to be reported on
any such SpinCo Separate Return (including any increase in such Income Tax
Liabilities as a result of a Final Determination).
(B) SpinCo shall prepare and file or
cause to be prepared and filed (1) SpinCo Separate Returns that are Other Tax
Returns for Pre-Distribution Taxable Periods or Straddle Periods, and (2) all
SpinCo Separate Returns for Post-Distribution Taxable Periods. SpinCo shall pay,
or cause to be paid, and shall be responsible for, any and all Income Taxes or
Other Taxes due or required to be paid with respect to or required to be
reported on any such SpinCo Separate Returns (including any increase in such
Income Tax Liabilities or Other Tax Liabilities as a result of a Final
Determination).
(b) Preparation of Tax Returns.
(i) Parent (or its designee) shall determine the
entities to be included in any Combined Return and make or revoke any Income Tax
elections, adopt or change any
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accounting methods, and determine any other position taken on or in respect of
any Income Tax Return or Other Tax Return required to be prepared and filed by
Parent pursuant to Section 2(a)(i) or 2(a)(iii)(A). Notwithstanding the
immediately preceding sentence, any Income Tax Return or Other Tax Return filed
by Parent pursuant to Section 2(a)(i) or 2(a)(iii)(A) with respect to any
Pre-Distribution Taxable Period or Straddle Period shall, to the extent relating
to SpinCo or the SpinCo Group, be prepared consistent with Parent's past
practice for the filing of such returns and shall not include any tax election
relating to SpinCo or the SpinCo Group that is inconsistent with past practice
(or, where no such past practice exists, shall not reflect any tax return
position or include any tax election that would adversely affect SpinCo or the
SpinCo Group), except to the extent that SpinCo consents to such return position
or tax election (such consent not to be unreasonably withheld).
(ii) SpinCo shall, and shall cause each member of
the SpinCo Group to, prepare and submit promptly to Parent, at SpinCo's expense,
all information that Parent shall reasonably request, in such form as Parent
shall reasonably request, relating to the rights and obligations of Parent or
SpinCo hereunder, including any such information so requested to enable Parent
to prepare any Income Tax Returns or Other Tax Return required to be filed by
Parent pursuant to Section 2(a)(i) or 2(a)(iii)(A) or any pro forma Income Tax
Return required to be prepared by parent pursuant to Section 3(b). Parent shall
request any such information in writing, which request shall specify the date by
which Parent requires receipt of the requested information in order to complete
the relevant returns in a timely fashion.
(iii) Except as required by applicable law or as a
result of a Final Determination, SpinCo shall not, and shall cause the members
of the SpinCo Group not to, take any position that is either inconsistent with
the treatment of the Spin-Off-Related Transactions as having Tax-Free Status (or
analogous status under State, local or foreign law) or, with respect to a
specific item of income, deduction, gain, loss, or credit on an Income Tax
Return or Other Tax Return, treat such specific item in a manner which is
inconsistent with the manner such specific item is reported on an Income Tax
Return or Other Tax Return prepared or filed by Parent pursuant to Section 2(a)
hereof (including, without limitation, the claiming of a deduction previously
claimed on any such Income Tax Return or Other Tax Return). SpinCo may, for a
Post Distribution Taxable Period, (other than the portion of a Straddle Period
beginning after the Distribution Date) elect to change methods of accounting for
items of income or deduction as allowed by applicable law.
(iv) Except as required by applicable law or as a
result of a Final Determination, Parent and SpinCo shall take all actions
necessary or appropriate to close the taxable period of the members of the
SpinCo Group as of the close of the Distribution Date.
3. SHARING OF INCOME TAXES AND OTHER TAXES.
(a) General Principle. Anything in Section 2 hereof to
the contrary notwithstanding, Tax sharing payments between Parent and SpinCo
shall be determined and settled in the manner specified in paragraphs (b) and
(c) hereof.
(b) Preparation of Pro Forma Income Tax Returns and
Related Documentation.
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(i) No later than 105 days after the
Distribution Date, Parent shall deliver to SpinCo (A) a pro forma federal Income
Tax Return of SpinCo reflecting the SpinCo Consolidated Tax Amount for the
Pre-Distribution Taxable Period ending on the Distribution Date, (B) the
required pro forma state or local Income Tax Returns of SpinCo or members of the
SpinCo group reflecting the SpinCo Consolidated Tax Amount for the
Pre-Distribution Taxable Period and the portion of any Straddle Period ending on
the Distribution Date, (C) a detailed schedule of the current tax accounts of
the SpinCo Group as reflected on the SpinCo general ledger, and (D) the
Settlement Statement (collectively the "Settlement Documents"). Parent shall
prepare the Settlement Documents in good faith and shall deliver such documents
together with summary schedules and a statement showing a calculation of the
amount required to be paid pursuant to paragraph (c) hereof. More detailed
schedules will be made available by Parent upon SpinCo's reasonable request.
(ii) If within thirty (30) days of receiving the
Settlement Documents pursuant to Section 3(b)(i) hereof, SpinCo provides written
notice to Parent that it disagrees with any item reflected in the Settlement
Documents, the parties shall in good xxxxx xxxxxx with each other to resolve any
such disagreement. The failure of SpinCo to provide the notice described in the
preceding sentence within the thirty (30) day period specified shall be deemed
to indicate that SpinCo agrees with its share of Taxes reflected in the
Settlement Documents.
(iii) If within ten (10) days of receipt by Parent
of the notice from SpinCo described in Section 3(b)(ii), any disputed item
remains unresolved, the parties will have another ten (10) days to retain an
Independent Third Party to resolve such dispute. If the parties cannot agree
within those ten (10) days on an Independent Third Party, then each of the
parties will have another ten (10) days to select an Independent Third Party and
the Independent Third Parties so selected will have five (5) additional days to
jointly select another Independent Third Party. The Independent Third Party
shall resolve any disputed items within thirty (30) days; provided, that the
Independent Third Party shall not adopt any tax return position advanced by the
SpinCo Group unless it concludes that such position (i) would have a likelihood
of success on the merits under applicable law that is greater than 50 percent
and (ii) is not directly inconsistent with a position taken on an Income Tax
Return of the Parent Consolidated Group or any member thereof. Any determination
made by the Independent Third Party shall be (i) in writing, (ii) made within
thirty (30) days following the selection of the Independent Third Party, and
(iii) final and binding upon the parties. The costs of any Independent Third
Party shall be shared equally by the parties. The Settlement Documents shall be
revised by Parent to the extent necessary to reflect the resolution by the
Independent Third Party.
(c) Payment Procedures.
(i) Once the parties have agreed on, or the
Independent Party has resolved any disputed items with respect to, the
Settlement Documents described in Section 3(b)(i), any amount required to be
paid pursuant to the Settlement Statement shall be paid within thirty (30) days
of the agreement on or resolution of such documents and, in the event of a
determination by the Independent Third Party, shall bear interest at the
Underpayment Rate from the first date specified in the first sentence of Section
3(b)(iii).
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(ii) If a pro forma Income Tax Return described
in Section 3(b) of this Agreement reflects a Tax asset that, under applicable
law, may be used to produce a net Tax benefit to Parent, Parent shall pay to
SpinCo an amount equal to the net Tax benefit produced by such Tax asset within
thirty (30) days after Parent Actually Realizes such net Tax benefit; provided,
however, that Parent shall not be required to make any payment to SpinCo
pursuant to this provision to the extent that such Tax asset was reflected in
the Settlement Documents.
(d) Restructuring Taxes. Anything in this Section 3 to
the contrary notwithstanding but subject to SpinCo's obligations pursuant to
Section 5(e), Parent shall bear any and all Income Taxes and Other Taxes,
whether paid by Parent or SpinCo, attributable to any restructuring transactions
effected by the Parent Consolidated Group in anticipation of the External
Spin-Off; provided, however, if any such restructuring transaction or the
payment by Parent of any Income Tax or Other Tax attributable to such
restructuring transaction results in aggregate net Tax benefits to SpinCo in
excess of $5,000,000, SpinCo shall pay to Parent an amount equal to the entire
amount of net Tax benefits within thirty (30) days after SpinCo Actually
Realizes such net Tax benefits.
4. INDEMNIFICATION FOR INCOME AND OTHER TAXES.
(a) Indemnification by Parent. From and after the
Distribution Date, Parent and each member of the Parent Group shall jointly and
severally indemnify, defend and hold harmless SpinCo and each member of the
SpinCo Group and each of their respective Representatives and Affiliates (and
the heirs, executors, successors and assigns of any of them) from and against
(i) all Spin-Off Tax Liabilities incurred by any member of the Parent Group,
(ii) without duplication, all Income Tax Liabilities and Other Tax Liabilities
that any member of the Parent Group is responsible for pursuant to Section 2 or
Section 3(d) (subject to Parent's right to receive payments from SpinCo under
Section 3), (iii) all Income Taxes incurred by any member of the SpinCo Group as
a result of a Final Determination disallowing any deduction for a payment set
forth on Schedule 4(a) hereof, (iv) all Income Taxes and Other Taxes incurred by
any member of the SpinCo Group by reason of the breach by Parent or any member
of the Parent Group of any of Parent's covenants hereunder, (v) any Income Taxes
and Other Taxes of any member of the Parent Group for which SpinCo or any member
of the SpinCo Group may be liable pursuant to Treasury Regulations Section
1.1502-6 or any similar provision of state or local law, and (vi) all
Tax-Related Losses incurred by any member of SpinCo Group as a result of an
action after the External Spin-Off by Parent or a member of the Parent Group,
which action caused any of the Spin-Off-Related Transactions not to have
Tax-Free Status, and, in each case, any related costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses); provided, however,
that Parent shall have no obligation to indemnify, defend or hold harmless any
Person pursuant to this Section 4(a) to the extent that any such indemnification
obligation is otherwise attributable to any breach by SpinCo or any member of
the SpinCo Group of any of SpinCo's representations or covenants hereunder
(including any representations made in connection with the Tax Opinion or any
Private Letter Ruling).
(b) Indemnification by SpinCo. From and after the
Distribution Date, SpinCo and each member of the SpinCo Group shall jointly and
severally indemnify, defend and hold harmless Parent and each member of the
Parent Group and each of their respective Representatives and Affiliates (and
the heirs, executors, successors and assigns of any of them)
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from and against (i) all Income Tax Liabilities, Other Tax Liabilities, Spin-Off
Tax Liabilities and Tax-Related Losses that SpinCo or any member of the SpinCo
Group is responsible for under Section 2 or Section 5 (including, without
limitation, any Income Tax Liabilities, Other Tax Liabilities, Spin-Off Tax
Liabilities or Tax-Related Losses arising with respect to a Permitted
Transaction for which SpinCo is liable pursuant to Section 5(e)(i)) and (ii) all
Income Taxes, Other Taxes, Spin-Off Tax Liabilities or other Tax-Related Losses
incurred by any member of the Parent Group or SpinCo Group by reason of the
breach by SpinCo or any member of the SpinCo Group of any of SpinCo's
representations or covenants hereunder (including any representations made in
connection with the Tax Opinion or any Private Letter Ruling) and, in each case,
any related costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses).
(c) Timing of Indemnification. Any payment and
indemnification made pursuant to this Section 4 shall be made by the
Indemnifying Party promptly, but, in any event, no later than:
(i) in the case of an indemnification obligation
with respect to any Spin-Off Tax Liabilities, Income Tax Liabilities or Other
Tax Liabilities, the later of (A) five Business Days after the date the
Indemnified Party notifies the Indemnifying Party and (B) five Business Days
prior to the date the Indemnified Party is required to make a payment of taxes,
interest, or penalties to the applicable Tax Authority (including a payment with
respect to an assessment of a tax deficiency by any Taxing Jurisdiction or a
payment made in settlement of an asserted tax deficiency) or realizes a reduced
Refund; and
(ii) in the case of any payment or
indemnification of any Losses not otherwise described in clause (i) of this
Section 4(c) (including, but not limited to, any Losses described in clause (b)
or (c) of the definition of Tax-Related Losses, attorneys' fees and expenses and
other indemnifiable Losses), the later of (A) five Business Days after the date
the Indemnified Party notifies the Indemnifying Party and (B) five Business Days
prior to the date the Indemnified Party makes a payment thereof.
5. SPIN-OFF RELATED MATTERS.
(a) Representations.
(i) Tax Opinion Documents. SpinCo hereby
represents and warrants that (i) it has examined the Tax Opinion Documents
(including, without limitation, the representations to the extent that they
relate to the plans, proposals, intentions, and policies of SpinCo, its
Subsidiaries, the SpinCo Business, or the SpinCo Group) and (ii) to the extent
in reference to SpinCo, its Subsidiaries, the SpinCo Business, or the SpinCo
Group, the facts presented and the representations made therein are true,
correct and complete.
(ii) Tax-Free Status. SpinCo hereby represents
and warrants that it has no plan or intention of taking any action, or failing
or omitting to take any action or knows of any circumstance, that could
reasonably be expected to (i) cause any of the Spin-Off-Related Transactions not
to have Tax-Free Status or (ii) cause any representation or factual statement
made in this Agreement, the SDA, the Tax Opinion Documents, or any of the
Ancillary
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Agreements to be untrue in a manner that would have an adverse effect on the
Tax-Free Status of any of the Spin-Off-Related Transactions.
(iii) Plan or Series of Related Transactions.
SpinCo hereby represents and warrants that, to the knowledge of SpinCo and the
SpinCo Group's management, none of the Spin-Off-Related Transactions are part of
a plan (or series of related transactions) pursuant to which a Person will
acquire stock representing a Fifty-Percent or Greater Interest in SpinCo or any
successor to SpinCo.
(b) Covenants.
(i) Actions Consistent with Representations and
Covenants. SpinCo shall not take any action or permit any member of the SpinCo
Group to take any action, and SpinCo shall not fail to take any action or permit
any member of the SpinCo Group to fail to take any action, where such action or
failure to act would be inconsistent with or cause to be untrue any material,
information, covenant or representation in this Agreement, the SDA, the Tax
Opinion Documents or any of the Ancillary Agreements.
(ii) Preservation of Tax-Free Status; SpinCo
Business. SpinCo shall not (A) take any action (including, but not limited to,
any cessation, transfer or disposition of all or any portion of any SpinCo
Business; payment of extraordinary dividends to shareholders; and acquisitions
or issuances of stock) or permit any member of the SpinCo Group to take any such
action, and SpinCo shall not fail to take any such action or permit any member
of the SpinCo Group to fail to take any such action, in each case, where such
action or failure to act would cause any of the Spin-Off-Related Transactions
not to have Tax-Free Status and (B) until the first day after the Restriction
Period, engage in any transaction that would result in it or any member of the
SpinCo Group ceasing to be a company engaged in any SpinCo Business (including,
without limitation, any cessation, transfer or disposition of any SpinCo
Business).
(iii) Sales, Issuances and Redemptions of Equity
Securities. Until the first day after the Restriction Period, none of SpinCo or
any member of the SpinCo Group shall, or shall agree to, sell or otherwise issue
to any Person, or redeem or otherwise acquire from any Person, any Equity
Securities of SpinCo or any member of the SpinCo Group; provided, however, that
(A) the adoption by SpinCo of a shareholder rights plan shall not constitute a
sale or issuance of such Equity Securities, (B) SpinCo and the members of the
SpinCo Group may repurchase such Equity Securities to the extent that such
repurchases meet the requirements of Section 4.05(1)(b) of Revenue Procedure
96-30, (C) SpinCo and the members of the SpinCo Group may issue such Equity
Securities to the extent such issuances satisfy Safe Harbor VI (relating to
acquisitions in connection with a person's performance of services) or Safe
Harbor VII (relating to acquisitions by a retirement plan of an employer) of
Treasury Regulation Section 1.355-7T(d).
(iv) Tender Offers; Other Business Transactions.
Until the first day after the Restriction Period, none of SpinCo or any member
of the SpinCo Group shall (A) solicit any Person to make a tender offer for, or
otherwise acquire or sell, the Equity Securities of SpinCo, (B) participate in
or support any unsolicited tender offer for, or other acquisition, issuance or
disposition of, the Equity Securities of SpinCo or (C) approve or otherwise
permit any proposed
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business combination or any transaction which, in the case of clauses (A), (B)
or (C), individually or in the aggregate, together with any transaction
occurring within the four-year period beginning on the date which is two years
before the Distribution Date and any other transaction which is part of a plan
or series of related transactions (within the meaning of Section 355(e) of the
Code) that includes the External Spin-Off, results in one or more Persons
acquiring (except for acquisitions that otherwise satisfy Safe Harbor VI
(relating to acquisitions in connection with a person's performance of services)
or Safe Harbor VII (relating to acquisitions by a retirement plan of an
employer) of Treasury Regulation Section 1.355-7T(d)) directly or indirectly
stock representing a 5% or greater interest in SpinCo (or any successor
thereto). In addition, none of SpinCo or any member of the SpinCo Group shall at
any time, whether before or subsequent to the expiration of the Restriction
Period, engage in any action described in clauses (A), (B) or (C) of the
preceding sentence if it is pursuant to an arrangement negotiated (in whole or
in part) prior to the first anniversary of the External Spin-Off, even if at the
time of the External Spin-Off or thereafter such action is subject to various
conditions.
(v) Dispositions of Assets. Until the first day
after the Restriction Period, none of SpinCo or any member of the SpinCo Group
shall sell, transfer, or otherwise dispose of or agree to dispose of assets
(including, for such purpose, any shares of capital stock of a Subsidiary and
any transaction treated for tax purposes as a sale, transfer or disposition)
that, in the aggregate, constitute more than 40% of the gross assets of SpinCo,
nor shall SpinCo or any member of the SpinCo Group sell, transfer, or otherwise
dispose of or agree to dispose of assets (including, for such purpose, any
shares of capital stock of a Subsidiary and any transaction treated for tax
purposes as a sale, transfer or disposition) that, in the aggregate, constitute
more than 40% of the consolidated gross assets of the SpinCo Group. The
foregoing sentence shall not apply to sales, transfers, or dispositions of
assets in the ordinary course of business. The percentages of gross assets or
consolidated gross assets of SpinCo or the SpinCo Group, as the case may be,
sold, transferred, or otherwise disposed of, shall be based on the fair market
value of the gross assets of SpinCo and the members of the SpinCo Group as of
the Distribution Date. For purposes of this Section 5(b)(v), a merger of SpinCo
or one of its Subsidiaries with and into any Person shall constitute a
disposition of all of the assets of SpinCo or such Subsidiary.
(vi) Liquidations, Mergers, Reorganizations.
Until the first day after the Restriction Period, neither SpinCo nor its
Subsidiaries shall, or shall agree to, voluntarily dissolve or liquidate or
engage in any merger (except for a Cash Acquisition Merger), consolidation or
other reorganization; provided, however, mergers of direct or indirect
wholly-owned Subsidiaries of SpinCo solely with and into SpinCo or with other
direct or indirect wholly-owned Subsidiaries of SpinCo, and liquidations of
SpinCo's Subsidiaries, are not subject to this Section 5(b)(vi) to the extent
not inconsistent with the Tax-Free Status of the Spin-Off-Related Transactions.
(c) Permitted Transactions. Notwithstanding the
restrictions otherwise imposed by Sections 5(b)(iii) through 5(b)(vi), during
the Restriction Period, SpinCo may (w) approve, participate in, support or
otherwise permit a proposed business combination or transaction that would
otherwise breach the covenant set forth in Section 5(b)(iv), (x) sell or
otherwise dispose of the assets of the SpinCo Group in a transaction that would
otherwise breach the covenant set forth in Section 5(b)(v), (y) merge SpinCo or
any member of the SpinCo Group with another entity without regard to which party
is the surviving entity in a transaction that
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would otherwise breach the covenant set forth in Section 5(b)(vi), or (z) issue
Equity Securities of SpinCo or any member of the SpinCo Group in a transaction
that would otherwise breach the covenant set forth in Section 5(b)(iii), if and
only if such transaction would not violate Section 5(b)(i) or Section 5(b)(ii)
and one of the following Sections 5(c)(i), 5(c)(ii) or 5(c)(iii) are satisfied.
(i) Supplemental Ruling; Tax Opinion. Prior to
entering into any agreement contemplating a transaction described in clauses
(w), (x), (y) or (z) of Section 5(c) and prior to consummating any such
transaction: (A) SpinCo shall request that Parent obtain a Private Letter Ruling
in accordance with Section 5(d)(ii) of this Agreement and Parent shall have
received such a Private Letter Ruling in form and substance satisfactory to
Parent in its sole and absolute discretion or (B) SpinCo shall provide Parent
with an Unqualified Tax Opinion in form and substance satisfactory to Parent in
its sole and absolute discretion (and in determining whether an opinion is
satisfactory, Parent may consider, among other factors, the appropriateness of
any underlying assumptions and management's representations if used as a basis
for the opinion).
(ii) Board Approval. Prior to entering into any
agreement contemplating a transaction described in clauses (y) or (z) of Section
5(c) (expressly excluding for this purpose transactions described in clause (x)
of Section 5(c)) and prior to consummating any such transaction, the following
conditions are satisfied: (A) following the transaction at issue, one or more
Persons will not have acquired, and will not have the right to acquire, directly
or indirectly, more than 35% (by vote or value) of the outstanding Equity
Securities of SpinCo or any member of the SpinCo Group (determined immediately
following such transaction) taking into account all relevant issuances of (and
agreements to issue) Equity Securities (and assuming the exercise or conversion
of all such Equity Securities (if such Equity Securities are options or warrants
or similar exercisable or convertible securities) and the closing of all such
agreements) from the point in time two years prior to the External Spin-Off to
the date immediately following such transaction and pursuant to any other
transaction which is part of a plan or series of related transactions (within
the meaning of Section 355(e) of the Code) that includes the External Spin-Off,
(B) SpinCo will be the surviving entity if such transaction is a merger (and the
transaction is not a reverse subsidiary merger in which SpinCo is the surviving
entity) and (C) SpinCo delivers to Parent a Board Certification.
(iii) Subsidiary Transaction. Prior to entering
into any agreement contemplating a transaction described in clauses (x), (y) or
(z) of Section 5(c) that is a SpinCo Group Member Transaction and prior to
consummating any such SpinCo Group Member Transaction: (A) SpinCo shall provide
Parent with adequate advance written notice of the intent of a member of the
SpinCo Group to enter into an agreement contemplating such SpinCo Group Member
Transaction in accordance with the terms of Section 5(f)(iii) and (B) Parent
determines in its reasonable discretion that such SpinCo Group Member
Transaction would not reasonably be expected to adversely affect the Tax-Free
Status of any of the Spin-Off Related Transactions (such discretion to be
exercised in good faith no later than ten (10) Business Days after receipt of
such notice and with the sole purpose of preserving the Tax-Free Status of the
Spin-Off Related Transactions).
(d) Private Letter Rulings and Restrictions on SpinCo.
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(i) Private Letter Ruling at Parent's Request.
Parent shall have the right to obtain a Private Letter Ruling in its sole and
absolute discretion. If Parent determines to obtain a Private Letter Ruling,
SpinCo shall (and shall cause each member of the SpinCo Group to) cooperate with
Parent and take any and all actions reasonably requested by Parent in connection
with obtaining the Private Letter Ruling (including, without limitation, by
making any representation or covenant or providing any materials or information
requested by any Tax Authority; provided that SpinCo shall not be required to
make (or cause any member of the SpinCo Group to make) any representation or
covenant that is inconsistent with historical facts or as to future matters or
events over which it has no control). In connection with obtaining a Private
Letter Ruling pursuant to this Section 5(d)(i), (A) Parent shall keep SpinCo
informed in a timely manner of all material actions taken or proposed to be
taken by Parent in connection therewith; (B) Parent shall (1) reasonably in
advance of the submission of any Private Letter Ruling Document, provide SpinCo
with a draft copy thereof, (2) reasonably consider SpinCo's comments on such
draft copy, and (3) provide SpinCo with a final copy; and (C) Parent shall
provide SpinCo with notice reasonably in advance of, and SpinCo shall have the
right to attend, any formally scheduled meetings with any Tax Authority (subject
to the approval of the Tax Authority) that relate to such Private Letter Ruling.
(ii) Private Letter Rulings at SpinCo's Request.
Parent agrees that at the reasonable request of SpinCo pursuant to Section
5(c)(i), Parent shall (and shall cause each member of the Parent Group to)
cooperate with SpinCo and use its reasonable best efforts to seek to obtain, as
expeditiously as possible, a Private Letter Ruling from the IRS and/or any other
applicable Tax Authority for the purpose of confirming compliance on the part of
SpinCo or any member of the SpinCo Group with its obligations under Section 5(b)
of this Agreement. Further, in no event shall Parent be required to file any
request for a Private Letter Ruling under this Section 5(d)(ii) unless SpinCo
represents that (A) it has reviewed the request for the Private Letter Ruling
and any materials, appendices and exhibits submitted or filed therewith, and (B)
all information and representations, if any, relating to any member of the
SpinCo Group, contained in the Ruling Documents are true, correct and complete
in all material respects. SpinCo shall reimburse Parent for all reasonable costs
and expenses incurred by the Parent Group in obtaining a Private Letter Ruling
requested by SpinCo within ten (10) Business Days after receiving an invoice
from Parent therefor. SpinCo hereby agrees that Parent shall have sole and
exclusive control over the process of obtaining a Private Letter Ruling, and
that only Parent shall apply for a Private Letter Ruling. In connection with
obtaining a Private Letter Ruling pursuant to this Section 5(d)(ii), (A) Parent
shall keep SpinCo informed in a timely manner of all material actions taken or
proposed to be taken by Parent in connection therewith; (B) Parent shall (1)
reasonably in advance of the submission of any Private Letter Ruling Document,
provide SpinCo with a draft copy thereof, (2) reasonably consider SpinCo's
comments on such draft copy, and (3) provide SpinCo with a final copy; and (C)
Parent shall provide SpinCo with notice reasonably in advance of, and SpinCo
shall have the right to attend, any formally scheduled meetings with any Tax
Authority (subject to the approval of the Tax Authority) that relate to such
Private Letter Ruling.
(iii) Prohibition on SpinCo. SpinCo hereby agrees
that neither it nor any member of the SpinCo Group shall seek any guidance from
the IRS or any other Tax Authority (whether written, verbal or otherwise)
concerning any of the Spin-Off-Related Transactions (or the impact of any
transaction on any of the Spin-Off-Related Transactions).
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(e) Liability for Undertaking Certain Actions.
Notwithstanding anything in this Agreement to the contrary, SpinCo and each
member of the SpinCo Group shall be responsible for any and all Tax-Related
Losses that are attributable to, or result from:
(i) any act or failure to act by SpinCo or any
member of the SpinCo Group, which action or failure to act breaches any of the
covenants described in Section 5(b)(i) through 5(b)(vi) of this Agreement
(without regard to the exceptions or provisos set forth in such provisions),
expressly including, for this purpose, any Permitted Transaction and any act or
failure to act that breaches Section 5(b)(i) or 5(b)(ii), regardless of whether
such act or failure to act is permitted by Section 5(b)(iii) through 5(b)(vi);
(ii) any acquisition of Equity Securities of
SpinCo or any member of the SpinCo Group by any person or persons (including,
without limitation, as a result of an issuance of SpinCo Equity Securities or a
merger of another entity with and into SpinCo or any member of the SpinCo Group)
or any acquisition of assets of SpinCo or any member of the SpinCo Group
(including, without limitation, as a result of a merger) by any Person or
Persons; and
(iii) Tax Counsel withdrawing all or any portion
of the Tax Opinion or any Tax Authority withdrawing all or any portion of a
Private Letter Ruling issued to Parent in connection with the Spin-Off-Related
Transactions because of a breach by SpinCo or any member of the SpinCo Group of
a representation made in this Agreement (or made in connection with the Tax
Opinion or any Private Letter Ruling contemplated by Section 5(d)).
(f) Cooperation.
(i) Without limiting the prohibition set forth
in Section 5(d)(iii), until the first day after the Restriction Period, SpinCo
shall furnish Parent with a copy of any ruling request that any member of the
SpinCo Group may file with the IRS or any other Tax Authority and any opinion
received that in any respect relates to, or otherwise reasonably could be
expected to have any effect on, the Tax-Free Status of any of the
Spin-Off-Related Transactions.
(ii) Parent shall reasonably cooperate with
SpinCo in connection with any request by SpinCo for an Unqualified Tax Opinion
pursuant to Section 5(c)(i).
(iii) Until the first day after the Restriction
Period, SpinCo will provide adequate advance notice to Parent in accordance with
the terms of Section 5(f)(iv) of any action described in Sections 5(b)(i)
through 5(b)(vi) within a period of time sufficient to enable Parent (A) to seek
injunctive relief pursuant to Section 5(g) in a court of competent jurisdiction
or (B) with respect to a SpinCo Group Member Transaction, determine that such
SpinCo Group Member Transaction would not reasonably be expected to adversely
affect the Tax-Free Status of any of the Spin-Off Related Transactions, as set
forth in Section 5(c)(iii).
(iv) Each notice required by Section 5(f)(iii)
shall set forth the terms and conditions of any such proposed transaction,
including, without limitation, (A) the nature of any related action proposed to
be taken by the board of directors of SpinCo, (B) the approximate number of
Equity Securities (and their voting and economic rights) of SpinCo or any member
of the SpinCo Group (if any) proposed to be sold or otherwise issued, (C) the
approximate value of SpinCo's assets (or assets of any member of the SpinCo
Group) proposed to be transferred, and
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(D) the proposed timetable for such transaction, all with sufficient
particularity to enable Parent to seek such injunctive relief or make a
determination pursuant to Section 5(c)(iii), as applicable. Promptly, but in any
event within 30 days, after Parent receives such written notice from SpinCo,
Parent shall notify SpinCo in writing of Parent's decision to seek injunctive
relief pursuant to Section 5(g).
(v) From and after the date Parent first
requests a Private Letter Ruling pursuant to Section 5(d) until the first day
after the two-year anniversary of such date that Parent receives such Private
Letter Ruling (pursuant to Section 5(d)(i) or 5(d)(ii)), neither SpinCo nor any
member of the SpinCo Group shall take (or refrain from taking) any action to the
extent that such action or inaction would have caused a representation given by
SpinCo in connection with any such request for a Private Letter Ruling to have
been untrue as of the relevant representation date, had SpinCo or any member of
the SpinCo Group intended to take (or refrain from taking) such action on the
relevant representation date.
(g) Enforcement. The parties hereto acknowledge that
irreparable harm would occur in the event that any of the provisions of this
Section 5 were not performed in accordance with their specific terms or were
otherwise breached. The parties hereto agree that, in order to preserve the
Tax-Free Status of the Spin-Off-Related Transactions, injunctive relief is
appropriate to prevent any violation of the foregoing covenants; provided,
however, that injunctive relief shall not be the exclusive legal or equitable
remedy for any such violation.
6. REFUNDS. Parent shall be entitled to all Refunds (and any
interest thereon received from the applicable Tax Authority) in respect of
Income Taxes and Other Taxes paid with respect to any Tax Return filed by Parent
or any member of the Parent Group. Subject to the proviso in Section 3(d),
SpinCo shall be entitled to all Refunds (and any interest thereon received from
the applicable Tax Authority) in respect of Income Taxes and Other Taxes paid
with respect to any Tax Return filed by SpinCo or any member of the SpinCo
Group. A party receiving a Refund to which another party is entitled pursuant to
this Section 6 shall pay the amount to which such other party is entitled within
ten (10) Business Days after such Refund is Actually Realized. Each of Parent
and SpinCo shall fully cooperate with the other party in connection with, any
claim for Refund in respect of an Income Tax or Other Tax for which any member
of the Parent Group or the SpinCo Group, as the case may be, is responsible
pursuant to Section 2.
7. TAX CONTESTS.
(a) Notification. SpinCo shall promptly notify Parent in
writing of any communication with respect to any pending or threatened
Proceeding in connection with an Income Tax Liability or Other Tax Liability (or
any issue related thereto) of SpinCo or any member of the SpinCo Group for which
a member of the Parent Group may be responsible pursuant to this Agreement;
provided, however, that in the case of any Distribution-Related Proceeding, such
notice shall be provided no later than ten (10) Business Days after SpinCo first
receives written notice from the IRS or other Tax Authority of such
Distribution-Related Proceeding). SpinCo shall include with such notification a
true, correct and complete copy of any written communication, and an accurate
and complete written summary of any oral communication, received by SpinCo or a
member of the SpinCo Group. The failure of SpinCo
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timely to forward such notification in accordance with the immediately preceding
sentence shall not relieve Parent of any obligation to pay such Income Tax
Liability or Other Tax Liability or indemnify SpinCo and the members of the
SpinCo Group and their respective Representatives, Affiliates, successors and
assigns therefor, except to the extent that the failure timely to forward such
notification actually prejudices the ability of Parent to contest such Income
Tax Liability or Other Tax Liability or increases the amount of such Income Tax
Liability or Other Tax Liability.
(b) Representation with Respect to Tax Disputes. Parent
(or such member of the Parent Group as Parent shall designate) shall have the
sole right to represent the interests of the members of the Parent Group and the
members of the SpinCo Group and to employ counsel of its choice at its expense
in any Proceeding relating to (A) any U.S. consolidated federal Income Tax
Returns of the Parent Consolidated Group, (B) any other Combined Returns, (C)
any Parent Separate Returns, and (D) any SpinCo Separate Returns that are Income
Tax Returns relating to Pre-Distribution Taxable Periods or Straddle Periods.
SpinCo (or such member of the SpinCo Group as SpinCo shall designate) shall have
the sole right to represent the interests of the members of the SpinCo Group and
to employ counsel of its choice at its expense in any Proceeding relating to (A)
SpinCo Separate Returns that are Other Tax Returns relating to Pre-Distribution
Taxable Periods and (B) SpinCo Separate Returns relating to Post-Distribution
Taxable Periods.
(c) Power of Attorney. Each member of the SpinCo Group
shall execute and deliver to Parent (or such member of the Parent Group as
Parent shall designate) any power of attorney or other document requested by
Parent (or such designee) in connection with any Proceeding described in the
first sentence of Section 7(b).
(d) Distribution-Related Proceedings. In the event of any
Distribution-Related Proceeding as a result of which SpinCo could reasonably be
expected to become liable for any Tax-Related Losses and with respect to which
Parent has the right to represent the interests of the members of the Parent
Group and/or the members of the SpinCo Group pursuant to Section 7(b) above, (A)
Parent shall provide SpinCo with copies of any document received by Parent from
any Tax Authority in connection with any such Proceeding no later than ten (10)
Business Days after Parent first receives such document, (B) Parent shall
consult with SpinCo reasonably in advance of taking any significant action in
connection with such Proceeding, (C) Parent shall consult with SpinCo and offer
SpinCo a reasonable opportunity to comment before submitting any written
materials prepared or furnished in connection with such Proceeding, (D) Parent
shall defend such Proceeding diligently and in good faith as if it were the only
party in interest in connection with such Proceeding, and (E) Parent shall
permit SpinCo to participate in any meetings or conference calls with any Tax
Authority if Parent reasonably determines that Parent would not be prejudiced by
such participation; provided, that, SpinCo's rights under this Section 7(d)
shall be limited to that portion of any Distribution-Related Proceeding that
directly relates to the Tax-Free Status of the Spin-Off-Related Transactions.
SpinCo shall be responsible for any expenses incurred by SpinCo in connection
with its participation in a Distribution-Related Proceeding.
8. APPORTIONMENT OF TAX ATTRIBUTES; CARRYBACKS.
(a) Apportionment of Tax Attributes.
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(i) If the Parent Consolidated Group has a Tax
Attribute, the portion, if any, of such Tax Attribute apportioned to SpinCo or
any member of the SpinCo Consolidated Group and treated as a carryover to the
first Post-Distribution Taxable Period of SpinCo (or such member) shall be
determined in accordance with Treasury Regulation Section 1.1502-79 and, if
applicable, Section 1.1502-79A.
(ii) No Tax Attribute with respect to
consolidated U.S. federal Income Tax of the Parent Consolidated Group, other
than those described in Section 8(a)(i), and no Tax Attribute with respect to
consolidated, combined or unitary State, local, or foreign Income Tax, in each
case, arising in respect of a Combined Return shall be apportioned to SpinCo or
any member of the SpinCo Group, except as Parent (or such member of the Parent
Group as Parent shall designate) determines is otherwise required under
applicable law.
(iii) Parent (or its designee) shall determine the
portion, if any, of any Tax Attribute which must (absent a Final Determination
to the contrary) be apportioned to SpinCo or any member of the SpinCo Group in
accordance with this Section 8(a) and applicable law, and the amount of tax
basis and earnings and profits to be apportioned to SpinCo or any member of the
SpinCo Group in accordance with applicable law, and shall provide written notice
of the calculation thereof to SpinCo as soon as practicable after the
information necessary to make such calculation becomes available to Parent.
(iv) Except as otherwise required by applicable
law or pursuant to a Final Determination, SpinCo shall not take any position
(whether on a Tax Return or otherwise) that is inconsistent with the information
contained in the written notice delivered by Parent pursuant to Section
8(a)(iii).
(b) Carrybacks. In the event that SpinCo (or the
appropriate member of the SpinCo Group) is able to carry back losses, credits or
other tax attributes against its income or tax liability in a Combined Return,
(i) Parent shall cooperate with SpinCo, at SpinCo's expense, in seeking from the
appropriate Tax Authority such Refund as reasonably would result from such
Carryback, and (ii) SpinCo shall be entitled to any Income Tax Benefit Actually
Realized by a member of the Parent Group (including any interest thereon
received from such Tax Authority), to the extent that such Refund is directly
attributable to such Carryback, within 30 days after such Refund is Actually
Realized; provided, however, that SpinCo shall indemnify and hold the members of
the Parent Group harmless from and against any and all collateral tax
consequences resulting from or caused by any such Carryback, including (but not
limited to) the loss or postponement of any benefit from the use of tax
attributes generated by a member of the Parent Group or an Affiliate thereof if
(x) such tax attributes expire unutilized, but would have been utilized but for
such Carryback, or (y) the use of such tax attributes is postponed to a later
taxable period than the taxable period in which such tax attributes would have
been utilized but for such Carryback. If there is a Final Determination that
results in any change to or adjustment of an Income Tax Benefit Actually
Realized by a member of the Parent Group that is directly attributable to a
Carryback, then Parent (or its designee) shall make a payment to SpinCo, or
SpinCo shall make a payment to Parent (or its designee), as may be necessary to
adjust the payments between SpinCo and Parent (or its designee) to reflect the
payments that would have been made under this Section 8(b) had the adjusted
amount of such Income Tax Benefit been taken into account in computing the
payments due under this Section 8(b).
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9. COOPERATION AND EXCHANGE OF INFORMATION.
(a) Cooperation and Exchange of Information. (A) Parent
and Spinco agree to make good faith efforts to request from the other party all
information it may need within six (6) months of the Distribution Date. (B) Each
of Parent and SpinCo, on behalf of itself and each member of the Parent Group
and the SpinCo Group, respectively, after six (6) months has lapsed, agrees to
use good faith efforts to provide the other party (or its designee) with such
cooperation or information as such other party (or its designee) reasonably
shall request in connection with the determination of any payment or any
calculations described in this Agreement, the preparation or filing of any
Income Tax Return or Other Tax Return or claim for Refund, or the conduct of any
Proceeding. Such cooperation and information shall include, without limitation,
(i) promptly forwarding copies of appropriate notices and forms or other
communications (including, without limitation, information document requests,
revenue agent's reports and similar reports, notices of proposed adjustments and
notices of deficiency) received from or sent to any Tax Authority or any other
administrative, judicial or governmental authority, (ii) providing copies of all
relevant Income Tax Returns or Other Tax Returns, together with accompanying
schedules and related workpapers, documents relating to rulings or other
determinations by any Tax Authority, and such other records concerning the
ownership and tax basis of property, or other relevant information, (iii) the
provision of such additional information and explanations of documents and
information provided under this Agreement (including statements, certificates,
forms, returns and schedules delivered by either party) as shall be reasonably
requested by Parent (or its designee) or SpinCo (or its designee), as the case
may be, (iv) the execution of any document that may be necessary or reasonably
helpful in connection with the filing of an Income Tax Return or Other Tax
Return, a claim for a Refund, or in connection with any Proceeding, including
such waivers, consents or powers of attorney as may be necessary for Parent or
SpinCo, as the case may be, to exercise its rights under this Agreement, and (v)
the use of Parent's or SpinCo's, as the case may be, reasonable efforts to
obtain any documentation from a governmental authority or a third party that may
be necessary or reasonably helpful in connection with any of the foregoing. Any
request for information or documents pursuant to this Section shall be made by
the requesting party in writing. The other party shall promptly (and in no event
later than 30 days after receipt of the request) provide the requested
information. The requesting party shall indemnify the other party for any
reasonable out-of-pocket expenses incurred by such party in connection with
providing any information or documentation pursuant to this Section 9. Upon
reasonable notice, each of Parent and SpinCo shall make its, or shall cause the
members of the Parent Group or the SpinCo Group, as applicable, to make their,
employees and facilities available on a mutually convenient basis to provide
explanation of any documents or information provided hereunder. Any information
obtained under this Section 9 shall be kept confidential, except as otherwise
reasonably may be necessary in connection with the filing of Income Tax Returns
or Other Tax Returns or claims for Refund or in conducting any Proceeding.
(b) Retention of Records. Each of Parent and SpinCo agree
to use good faith efforts to retain (i) all Income Tax Returns and Other Tax
Returns, related schedules and workpapers, in respect of any taxable period that
ends on or before or includes the Distribution Date or any other taxable period
that may be subject to a claim hereunder until the later of (A) the expiration
of the statute of limitations (including extensions) for the taxable periods to
which such Income Tax Returns, Other Tax Returns relate and (B) the Final
Determination of any
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payments that may be required in respect of such taxable periods under this
Agreement, and (ii) all material records and other documents as required under
Section 6001 of the Code and the regulations promulgated thereunder (and any
similar provision of State, local, or foreign law) existing on the date hereof
or created until seven (7) years after the Distribution Date.
(c) Remedies. Each of Parent and SpinCo hereby
acknowledges and agrees that (i) the failure of any member of the Parent Group
or the SpinCo Group, as the case may be, to comply with the provisions of this
Section 9 may result in substantial harm to the Parent Group or the SpinCo
Group, as the case may be, including the inability to determine or appropriately
substantiate an Income Tax Liability or Other Tax Liability (or a position in
respect thereof) for which the Parent Group (or a member thereof) or the SpinCo
Group (or a member thereof), as applicable, would be responsible under this
Agreement or appropriately defend against an adjustment thereto by a Tax
Authority, (ii) the remedies available to the Parent Group for the breach by a
member of the SpinCo Group of its obligations under this Section 9 shall include
(without limitation) the indemnification by SpinCo of the Parent Group for any
Income Tax Liabilities or Other Tax Liabilities incurred or any Tax benefit lost
or postponed by reason of such breach and the forfeiture by the SpinCo Group of
any related rights to indemnification by Parent and (iii) the remedies available
to the SpinCo Group for the breach by a member of the Parent Group of its
obligations under this Section 9 shall include (without limitation) the
indemnification by Parent of the SpinCo Group for any Income Tax Liabilities or
Other Tax Liabilities incurred or any Tax benefit lost or postponed by reason of
such breach and the forfeiture by the Parent Group of any related rights to
indemnification by SpinCo.
(d) Reliance by Parent. If any member of the SpinCo Group
supplies information to a member of the Parent Group in connection with an
Income Tax Liability or Other Tax Liability and an officer of a member of the
Parent Group signs a statement or other document under penalties of perjury in
reliance upon the accuracy of such information, then upon the written request of
such member of the Parent Group identifying the information being so relied
upon, the chief financial officer of SpinCo (or his or her designee) shall
certify in writing that to his knowledge (based upon consultation with
appropriate employees) the information so supplied is accurate and complete.
SpinCo agrees to indemnify and hold harmless each member of the Parent Group and
its directors, officers and employees from and against any fine, penalty, or
other cost or expense of any kind attributable to a member of the SpinCo Group
having supplied, pursuant to this Section 9, a member of the Parent Group with
inaccurate or incomplete information in connection with an Income Tax Liability
or Other Tax Liability.
(e) Reliance by SpinCo. If any member of the Parent Group
supplies information to a member of the SpinCo Group in connection with an
Income Tax Liability or Other Tax Liability and an officer of a member of the
SpinCo Group signs a statement or other document under penalties of perjury in
reliance upon the accuracy of such information, then upon the written request of
such member of the SpinCo Group identifying the information being so relied
upon, the chief financial officer of Parent (or his or her designee) shall
certify in writing that to his knowledge (based upon consultation with
appropriate employees) the information so supplied is accurate and complete.
Parent agrees to indemnify and hold harmless each member of the SpinCo Group and
its directors, officers and employees from and against any fine, penalty, or
other cost or expense of any kind attributable to a member of the Parent Group
having supplied,
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pursuant to this Section 9, a member of the SpinCo Group with inaccurate or
incomplete information in connection with an Income Tax Liability or Other Tax
Liability.
(f) Excluded Information. Anything in this Section 9 to
the contrary notwithstanding, neither Parent nor SpinCo shall be required to
provide the other with (A) any information with respect to which it reasonably
determines that such information may be privileged, and (B) any information that
it is required to keep confidential; provided, that, each party shall use
reasonable efforts to separate any information described in clause (A) or (B)
from information that it is required to provide to the other party pursuant to
this Section 9.
10. PAYMENTS.
(a) Method of Payment. All payments required by this
Agreement shall be made by (i) wire transfer to the appropriate bank account as
may from time to time be designated by the parties for such purpose; provided
that, on the date of such wire transfer, notice of the transfer is given to the
recipient thereof, or (ii) any other method agreed to by the parties. All
payments due under this Agreement shall be deemed to be paid when available
funds are actually received by the payee.
(b) Interest. Any payment required by this Agreement that
is not made on or before the date required hereunder shall bear interest, from
and after such date through the date of payment, at the Underpayment Rate.
(c) Characterization of Payments. For all tax purposes,
the parties hereto agree to treat, and to cause their respective Affiliates to
treat, (i) any payment required by this Agreement, as either a contribution by
Parent to SpinCo or a distribution by SpinCo to Parent, as the case may be,
occurring immediately prior to the External Spin-Off and (ii) any payment of
interest or non-federal Income Taxes by or to a Tax Authority, as taxable or
deductible, as the case may be, to the party entitled under this Agreement to
retain such payment or required under this Agreement to make such payment, in
either case, except as otherwise required by applicable law or a Final
Determination; provided, that in the event it is determined that, pursuant to
applicable law or a Final Determination, any such treatment is not permissible
(or that an Indemnified Party nevertheless suffers an Income Tax or Other Tax
detriment as a result of such payment), the payment in question shall be
adjusted to place the Indemnified Party in the same after-tax position it would
have enjoyed absent such Final Determination.
11. LEGAL AND ACCOUNTING FEES. Except as otherwise provided
herein, any fees or expenses for legal, accounting or other professional
services shall be borne by the party incurring such fees or expenses.
12. NOTICES. Notices, requests, permissions, waivers, and other
communications hereunder shall be in writing and shall be deemed to have been
duly given upon (a) a transmitter's confirmation of a receipt of a facsimile
transmission (but only if followed by confirmed delivery of a standard overnight
courier the following Business Day or if delivered by hand the following
Business Day), or (b) confirmed delivery of a standard overnight courier or
delivered by hand, to the parties at the following addresses (or at such other
addresses for a party as shall be specified by like notice):
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If to Parent, to: U.S. Bancorp
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
Telecopier: (000) 000-0000
If to SpinCo to: Xxxxx Xxxxxxx Companies
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
Telecopier: (000) 000-0000
Such names and addresses may be changed by notice given in accordance with this
Section 14.
13. DESIGNATION OF AFFILIATE. Parent may assign any of its rights
or obligations under this Agreement to any member of the Parent Group as it
shall designate; provided, however, that no such assignment shall relieve Parent
of any obligation to make a payment hereunder to SpinCo to the extent such
designee fails to make such payment.
14. MISCELLANEOUS. Except to the extent otherwise provided in this
Agreement, this Agreement shall be subject to the provisions of Article IX
(Miscellaneous) of the SDA to the extent set forth therein.
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IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the day and year first written above.
U.S. BANCORP
By: /s/ Xxx X. Mitau
-------------------------------
Name: Xxx X. Mitau
Title: Executive Vice President
XXXXX XXXXXXX COMPANIES
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
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