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Exhibit 10.3
AMENDMENT NUMBER 1 TO THE TAX INDEMNIFICATION AGREEMENT
DATED AS OF MAY 7, 1999
AMENDMENT NUMBER 1, dated as of September 5, 2000 (the "First
Amendment") to the Tax Indemnification Agreement between The Xxxxxxx Xxxxx
Group, Inc., a Delaware corporation (the "Company") and the Indemnitees listed
therein (the "Indemnitees"), dated as of May 7, 1999 (the "Tax Indemnification
Agreement");
WHEREAS, Section 10 of the Tax Indemnification Agreement
authorizes the Company to amend the Tax Indemnification Agreement in any respect
so long as such amendment does not materially adversely affect the amount an
Indemnitee is otherwise entitled to receive from the Company pursuant to the Tax
Indemnification Agreement; and
WHEREAS, the Company desires to amend the Tax Indemnification
Agreement as set forth herein in order to clarify certain provisions contained
therein;
NOW THEREFORE, the Tax Indemnification Agreement is amended by
the addition of the following as a new Section 3(g):
"(g) Without limiting any other rights of the Company contained herein,
(i) the Company (or its designee) shall have the right to designate or appoint
(or consent or agree to the designation or appointment of) any individual or
entity, including making any such designation or appointment (or consenting or
agreeing to any such designation or appointment) in the name and on behalf of
the Indemnitee (and in the case of an Indemnitee who or which is the transferee
of substantially all of the assets of a former partner of the Partnership, on
behalf of such former partner), as the Tax Matters Partner (as defined in
Section 6231(a)(7) of the Internal Revenue Code), with respect to any taxable
year, of the Partnership or any Affiliate; (ii) the Company, any designee of the
Company or any relevant Tax Matters Partner shall have the right (including,
without limitation, in its own name or in the name of, and on behalf of, any
Indemnitee (and in the case of an Indemnitee who or which is the transferee of
substantially all of the assets of a former partner of the Partnership, on
behalf of such former partner)) to extend or to consent to the extension of any
statute of limitations applicable to the Partnership, any Affiliate, or, to the
extent applicable to a Partnership Item, the Indemnitee; and (iii) the Company,
any designee of the Company or any relevant Tax Matters Partner shall have the
right to take any action, including in the name and on behalf of the Indemnitee
(and in the case of an Indemnitee who or which is the transferee of
substantially all of the assets of a former partner of the Partnership, on
behalf of such former partner), with respect to any actual or proposed
assessment, audit, examination or other similar proceeding or matter, including
agreeing to any audit adjustment or other assessment. Each Indemnitee (i) hereby
approves of such designation, appointment, agreement, consent, extension or
action and consents and agrees to execute, certify, acknowledge, deliver, swear
to, file and record at the appropriate public offices evidence of such approval,
designation, appointment, agreement, consent, extension or action and to take
any other action reasonably requested by the Company (or its designee) as may be
deemed necessary or appropriate and (ii) to the extent permitted by law, agrees
not to challenge or claim or cooperate or assist any other party in challenging
or claiming, as a complaint or a defense, or
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otherwise asserting in any respect whatsoever, that such approval, designation,
appointment, agreement, consent, extension or action is not valid or
enforceable."
Unless otherwise defined herein, all capitalized and undefined
terms shall have the meanings assigned to them in the Tax Indemnification
Agreement.
Except as amended hereby, all of the terms of the Tax
Indemnification Agreement shall remain and continue in full force and effect and
are hereby confirmed in all respects.
IN WITNESS WHEREOF, the Company has executed and delivered
this Amendment Number 1 as of the date above written.
THE XXXXXXX SACHS GROUP, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Director, President and
Co-Chief Operating Officer
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