EXHIBIT 10.6
TAX-SHARING AGREEMENT
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THIS AGREEMENT (the "Agreement") dated as of April 1, 1993 between NSG Holding
USA, Inc. (NSG) and Epitaxx, Inc. (Epitaxx) both of which are members of an
affiliated group of domestic corporations (hereinafter such affiliated group
shall be referred to as the NSG Group).
WITNESSETH:
WHEREAS, NSG is the common parent of the NSG Group; and
WHEREAS, Epitaxx is a member of the NSG Group; and
WHEREAS, the NSG GROUP, has elected to file consolidated federal and state
income tax returns ("Consolidated Return") and wishes to make provisions
therefore and to agree with respect to certain other matters related to such
filings.
NOW, THEREFORE, in consideration of the promises and of the agreements herein
Set forth, NSG and Epitaxx hereby agree as follows:
(1) Epitaxx will join in the Consolidated Return to be filed by NSG on behalf
of the NSG Group for the taxable year ended March 31, 1994 and for all
subsequent tax periods to the extent the Epitaxx is eligible to join in
such return under the provisions of the applicable tax laws. NSG and
Epitaxx will not elect to file separate return for such periods.
(2) Epitaxx agrees to furnish NSG with any and all information requested by NSG
in order to carry out the provisions of this Agreement. NSG agrees to
furnish to Epitaxx any and all information requested by Epitaxx in order to
carry out the provisions of this Agreement.
(3) Epitaxx will cooperate with NSG in filing any return or consent
contemplated by this Agreement and agree to take such action as NSG may
reasonably request.
(4) A) In the event that NSG files a Consolidated Return for any period
ending subsequent to March 31, 1994 which includes Epitaxx, then
Epitaxx agrees to pay to NSG an amount equal to the income tax
liability which Epitaxx would have incurred had it filed an income tax
return on a separate basis for such period. Said payment shall be due
on the 15th day of the fourth, sixth, ninth and twelfth month of
taxable year if quarterly estimated taxes are required, otherwise a
settlement will be required when the tax return in filed.
B) If, for any period that Epitaxx is included in a Consolidated Return,
Epitaxx, on a separate return basis, has a net tax loss or has tax
credits in excess of its tax liability, NSG shall pay Epitaxx an
amount equal to any refund which would have been received by Epitaxx
had it filed on a separate return basis for such period. Said refund
shall be due when the return is filed.
C) For purposes of this section the amount of Epitaxx's separate income
tax liability shall be computed to include carryovers and carrybacks
of losses, credits, or deductions computed as though no Consolidated
Return had been filed in any year, notwithstanding that there is no
carryover or carryback, or there is a larger or smaller carryover or
carryback as a result of filing a Consolidated Return.
(5) The computation of the amount of income tax liability of Epitaxx for any
period in which they joined in a Consolidated Return of the NSG Group shall
be adjusted consistent with any adjustments made by the relevant tax
authorities to the taxable income, loss, or tax credits of such company,
and any additional amounts which are payable to or by NSG on account of
such adjustments shall be paid promptly, including interest, if any, in the
amount that would have been required by the taxing authority.
(6) Any income tax deficiencies or refund claims which arise with respect to
consolidated tax liability of the NSG Group and which are attributable to
Epitaxx, Epitaxx shall have the right at their own expense, to require NSG
to contest any such adjustment of such Consolidated Return in such
administrative and judicial forums as Epitaxx deems appropriate.
(7) NSG shall have the right to make any and all elections permitted by law
with respect to the treatment of items of income, deduction, or credit for
it and Epitaxx. Epitaxx shall have the right to make any and all elections
permitted by law with respect to the treatment of items of income,
deduction, or credit in computing their separate tax liabilities. However,
if any such election which Epitaxx wishes to avail themselves in
determining their separate income tax liability for any period would
require any notice to or any filing with any governmental agency or body,
then in order to make such election Epitaxx must give such notice to or
make such filing with NSG within the time and in the manner prescribed by
law.
(8) For the purposes of this Agreement, all computations or recomputations of
any amount or any payment (including, but not limited to, computations of
the amount of the tax liability, any loss, credit, or deduction, statutory
tax rates for a year, interest payments, and adjustment) shall be based on
the conclusions of independent public accountants for the NSG Group with
Epitaxx's approval of said conclusions.
(9) Successors
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This Agreement shall be binding on and inure to the benefit of any
successor, by merger, acquisition of assets or otherwise, to any of the
parties hereto (including, but not limited to, any successor of NSG or any
Group member succeeding to the tax attributes or either under Section 381
of the Internal Revenue Code), to the same extent as if such successor had
been an original party to this Agreement.
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(10) This Agreement shall be governed and construed in accordance with the laws
of New Jersey and shall be binding on the successor and assigns of the
parties hereto.
(11) This Agreement contains the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior written
agreements, memoranda, negotiations, and oral understandings, if any, and
may not be amended, supplemented, or discharged except by performance or by
an instrument in writing signed by all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
NSG Holding USA, Inc.
By: /s/ Xxxxxxxxx Xxxxxxx
Epitaxx, Inc.
By: /s/ Xxxxx X. Xxxxxxx
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