Exhibit 10.2
AMENDED AND RESTATED TAX ALLOCATION AGREEMENT
This Amended and Restated Agreement, dated as of March 27, 2002 and
effective for taxable years commencing on or after January 1, 1996, is entered
into by and between Citigroup Inc. ("Citigroup"), formerly known as Travelers
Group Inc., a Delaware Corporation and Travelers Property Casualty Corp.
("TAP"), formerly knows as The Travelers Insurance Group Inc., a Connecticut
Corporation.
WHEREAS, TAP owns, directly or indirectly, the issued and outstanding
shares of the TAP subsidiaries listed on Attachment I, as from time to time may
be amended, attached hereto and incorporated herein by reference as if set forth
in full (such Attachment I subsidiaries are collectively referred to herein as
the "TAP Subsidiaries").
WHEREAS, Citigroup, TAP and the TAP Subsidiaries (or their respective
predecessor corporations) have been, through the date hereof, members of an
"affiliated group" ("Citigroup Affiliated Group") of "includible corporations"
("Includible Corporations"), as such terms are defined in section 1504 of the
Internal Revenue Code of 1986, as amended (the "Code"), which has elected to
file a consolidated Federal income tax return pursuant to section 1501 of the
Code ("Consolidated Federal Tax Return");
WHEREAS, Citigroup, TAP and the TAP Subsidiaries, including subsidiaries
of subsidiaries, have filed and may be required to file combined returns of
certain state and local income or franchise taxes;
WHEREAS, on the date hereof TAP has completed or will complete an initial
public offering of shares of its class A common stock (the "IPO") which has
resulted or will result in TAP and its subsidiaries no longer qualifying as
Includible Corporations and being ineligible to file a Consolidated Federal Tax
Return with Citigroup;
WHEREAS, Citigroup and TAP have agreed to undertake a series of
transactions which are intended to qualify as tax-free distributions under Code
section 355 and include the distribution (1) to Citigroup of all of the
outstanding shares of class A and B common stock of TAP owned by subsidiaries of
Citigroup in two successive internal distributions (the "Internal
Distributions") and (2) by Citigroup of an amount of such stock representing
Code section 368(c) "control" of TAP to the holders of Citigroup's common stock
(the "External Distribution" and, together with the Internal Distributions, the
"Distributions"); and
WHEREAS, Citigroup and TAP wish to provide for the allocation of
liabilities, and procedures to be followed, with respect to taxes of the parties
hereto and their subsidiaries, if any, under the terms of this Amended and
Restated Tax Allocation Agreement ("Agreement").
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements contained herein, the parties hereto agree as follows:
1. Definitions
(a) "Citigroup Affiliated Group" shall have the meaning ascribed to such
term in the prefatory language to this Agreement.
(b) "Citigroup State Group" means some or all of the members of the
Citigroup Affiliated Group (including subsidiaries of subsidiaries) which have
been filing or hereafter shall file returns of state or local income or
franchise taxes as a group of which Citigroup or a Citigroup affiliate is the
common parent. Such common parent shall hereafter be referred to as the
"Citigroup State Parent." Citigroup State Group does not include a group
consisting solely of two or more TAP Subgroup members.
(c) "Code" shall have the meaning ascribed to such term in the prefatory
language to this Agreement.
(d) "Compensation Expense Differential" shall have the meaning specified
in Paragraph 11 hereof.
(e) "Consolidated Federal Income Taxes" means the Federal income taxes
relating to the Citigroup Affiliated Group for such taxable periods covered by
this Agreement.
(f) "Consolidated Federal Tax Return" shall have the meaning ascribed to
such term in the prefatory language to this Agreement and shall include any
amendments filed with respect to such returns.
(g) "Deficit Member" when used for the Federal income tax allocation
provisions of this Agreement (paragraphs 2 through 13) means the Member having
an ordinary loss, capital loss, special deduction or tax credit arising in
either a consolidated return year (past, present or future) or in a prior
separate return year, which is utilized to a greater extent in the then current
consolidated Federal income tax return than would have been the case, if such
Member had filed a separate Federal income tax return for the year.
(h) "Departing Member" shall have the meaning specified in paragraph 10(a)
hereof.
(i) "Dispose" (and with correlative meaning, "Disposition") shall mean
pay, discharge, settle or otherwise dispose.
(j) "Distributions" shall have the meaning ascribed to such term in the
prefatory language to this Agreement.
(k) "Employer" and "Employers" shall have the meaning specified in
paragraph 11 hereof.
(l) "External Distribution" shall have the meaning ascribed to such term
in the prefatory language to the Agreement.
(m) "Final Determination" shall mean (i) the entry of a decision of a
court of competent jurisdiction at such time as an appeal may no longer be taken
from such
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decision, (ii) the execution of a closing agreement or its equivalent between
the particular taxpayer and the IRS or the relevant governmental taxing
authority and (iii) any other final Disposition complying with the provisions of
this Agreement.
(n) "Group Deficit Member" means "Deficit Member" as defined in Paragraph
1(b) of the Travelers Tax Sharing Agreement.
(o) "Internal Distributions" shall have the meaning ascribed to such term
in the prefatory language to this Agreement.
(p) "IPO" shall have the meaning ascribed to such term in the prefatory
language to this Agreement.
(q) "IRS" shall mean the United States Internal Revenue Service.
(r) "Losses" shall mean all Taxes (including any interest, additions to
tax, or penalties applicable thereto), losses, liability and expense, including,
without limitation, attorneys fees and expenses in connection with any action,
suit or proceeding.
(s) "Marginal Tax Benefit" shall mean the aggregate tax effect measured
with and without the Compensation Expense Differential for each of the TAP
Subgroup members and reflects the net change in the cumulative tax liability
associated with Federal income or state or local income and franchise taxes
incurred by such TAP Subgroup member solely as a result of the Compensation
Expense Differential.
(t) "Member," when used for purposes of the Federal income tax allocation
provisions of this Agreement (paragraphs 2 through 13) means the TAP Subgroup
considered as one member, as such term is defined in Treasury Regulations
section 1.1502-1(b), and as if such group comprised an affiliated group which
filed a Consolidated Federal Tax Return separately from Citigroup.
(u) "Plan" shall have the meaning specified in paragraph 11 hereof.
(v) "Promptly" shall mean not to exceed 30 days.
(w) "Spin-Off Taxes" shall mean any and all Taxes (including any interest,
additions to tax, or penalties applicable thereto) imposed on Citigroup or any
Includible Member of the Citigroup Affiliated Group arising in connection with
the failure of the Distributions to qualify under section 355(a) and (c) or, if
applicable, section 361(c) of the Code, or the application of section 355(e) of
the Code to any of the Distributions.
(x) "State Parent" means Citigroup State Parent.
(y) "TAP State Subgroup" when used for the state and local tax allocation
provisions of this Agreement (paragraphs 14 through 26) TAP, if applicable, and
any of its subsidiaries, if applicable, to the extent any are included in a
Citigroup Combined State Return.
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(z) "TAP Subgroup" shall mean TAP and its subsidiaries.
(aa) "Tax" or "Taxes" shall include where applicable, all interest and
penalties assessed or assessable against the taxpayer by the relevant taxing
authority.
(bb) "Tax Claim" means a notice of deficiency, proposed adjustment,
assessment, audit, examination, suit, dispute or other claim with respect to
Taxes or a Tax Return.
(cc) "Tax Return" shall mean all Federal, state, local and foreign tax
returns, declarations, statements, reports, schedules, forms and information
returns and any amended Tax Return relating to Taxes.
(dd) "Travelers Tax Sharing Agreement" means the Travelers Group Inc. Tax
Sharing Agreement effective January 1, 1989, as amended.
2. Consolidated Federal Income Taxes.
The provisions of paragraphs 3 through 13 shall apply with respect to all
taxable periods during which TAP and the TAP Subgroup are included in the
Consolidated Federal Tax Return of Citigroup. Paragraph 11 shall apply for all
taxable periods without regard to whether TAP and the TAP Subgroup are included
in the Consolidated Federal Tax Return of Citigroup.
3. Citigroup as Agent. Except as otherwise provided in paragraph 27(a)
of this Agreement:
Citigroup shall be the sole agent for the TAP Subgroup, in all matters
relating to liability for Consolidated Federal Income Taxes. TAP and its
subsidiaries shall cooperate fully in providing Citigroup with all information
and documents necessary or desirable to enable Citigroup to perform its
obligations under paragraphs 3 through 13 hereof, including completion of audits
by the IRS or other governmental agencies in connection with the Consolidated
Federal Tax Return covered by this Agreement and determination of the proper
liabilities for such Consolidated Federal Income Taxes.
4. Tax Returns.
(a) Citigroup shall file on behalf of TAP and the TAP Subgroup all
Consolidated Federal Tax Returns. TAP shall prepare and forward to Citigroup pro
forma income tax returns for TAP and all corporations in the TAP Subgroup in
such form and at such times as Citigroup may reasonably request. At Citigroup's
request, TAP shall join and shall cause its respective subsidiaries to join (if
such corporations are Includible Corporations in the Citigroup Affiliated Group)
in the Consolidated Federal Tax Return of Citigroup and, if required, execute
its consent to each such filing on any form as may be prescribed therefor.
(b) The decision of the Citigroup most senior tax officer ("Citigroup Tax
Officer") shall, subject to the provisions of this Agreement, be binding in any
dispute
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between Citigroup, TAP and/or the TAP Subgroup, for example, as to what
tax position should be taken with respect to any item or transaction in the
Consolidated Federal Tax Return of Citigroup; provided, however, in connection
therewith, the Citigroup Tax Officer shall act in good faith with regard to TAP
and the TAP Subgroup companies included in such return.
5. Tax Obligations of Citigroup. Except as otherwise provided in
paragraph 27 of this Agreement:
Citigroup agrees to pay the Consolidated Federal Income Taxes arising from
filing a Consolidated Federal Tax Return. In the event that TAP or any of its
subsidiaries, or successors in interest thereto, directly pays, or causes to pay
all or a portion of the Consolidated Federal Income Taxes arising from the
filing of such a Consolidated Federal Tax Return, Citigroup shall Promptly
reimburse the member to the extent such payment exceeds such member's allocable
Consolidated Federal Income Taxes, as determined herein. This obligation shall
be continuing and ongoing and each such liability for each such period covered
herein shall survive any subsequent transaction, unless such liability shall be
extinguished, with specificity, in an agreement subsequent to the effective date
hereof.
6. Federal Tax Obligations of TAP and the TAP Subgroup.
(a) TAP shall pay to Citigroup a sum equal to that portion of the
Consolidated Federal Income Taxes for each taxable year which, from time to
time, may be allocated to the TAP Subgroup pursuant to the allocation method set
forth in Treasury Regulations section 1.1552-1(a)(2).
(b) For purposes of this Agreement, amounts allocated to the TAP Subgroup
under Treasury Regulations section 1.1552-1(a)(2) shall be computed on the basis
of the Federal income tax of the TAP Subgroup, as if such group filed a separate
consolidated return with TAP as the common parent. However, in determining the
separate return liability for Federal income taxes for the TAP Subgroup, where
the TAP Subgroup's separate return liability would otherwise be determined under
section 55 of the Code, and the Consolidated Federal Tax Liability is determined
under section 11 of the Code, the TAP Subgroup's liability shall also be
determined under section 11 of the Code.
(c) The liability of the TAP Subgroup under this Agreement for
Consolidated Federal Income Taxes allocated to the TAP Subgroup shall be a
separate, distinct and absolute liability, not otherwise subject to offset or
reduction for any reason. Such liability may be reallocated and assessed
consistent with the terms of this Agreement for the period up to and including
the date of the first anniversary of the date upon which there was a Final
Determination of Consolidated Federal Income Tax liability for the period
covered by this Agreement, and such liability shall be continuing and ongoing,
and each such liability for each period covered herein shall survive any
subsequent transaction, unless such liability shall be extinguished, with
specificity, in an agreement subsequent to the effective date hereof.
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7. Additional Obligations of the TAP Subgroup.
TAP shall pay to Citigroup a sum equal to 100 percent of the difference
("Difference") between the amount determined under paragraph 6 hereof and, if
larger, the separate return tax liability of the TAP Subgroup as provided by
Treasury Regulations section 1.1502-33(d)(2)(ii), as if the TAP Subgroup were a
single member of the Citigroup Affiliated Group. In determining the Difference
for all purposes hereof, where the TAP Subgroup's separate return liability
would otherwise be determined under section 55 of the Code and the Consolidated
Federal Tax liability is determined under section 11 of the Code, the TAP
Subgroup's liability shall also be determined under section 11 of the Code, and
any payments made by or on behalf of such member to Citigroup pursuant to
paragraph 18 hereof concerning the allocation of state and local taxes shall be
treated as payments to the state or local taxing authority.
8. Time of Payment of Obligations of TAP.
The obligations of TAP under paragraphs 6 and 7 hereof shall be determined
and paid as follows:
(a) Within 15 days after the end of the third, fifth, eighth and eleventh
month of each Citigroup consolidated taxable year or other applicable Federal
due date used by Citigroup, Citigroup shall make a reasonable determination of
the separate Federal income tax liability which the TAP Subgroup would be
required to pay as estimated tax payments on a separate return basis for such
period employing the same method for calculating estimated tax installment
payments as that used by Citigroup for such installment. TAP shall pay in
immediately available funds on the applicable Federal due date to Citigroup the
amount of such liability upon presentation of such estimate.
(b) After the end of the Citigroup fourth accounting quarter, and on the
fifteenth day of the third month thereafter, TAP shall pay to Citigroup the
entire amount estimated to be due and payable pursuant to paragraphs 6 and 7
hereof, less all amounts previously paid with respect to such year pursuant to
subparagraph 8(a).
(c) If, upon the filing of the Consolidated Federal Tax Return, it is
determined that TAP has paid to Citigroup with respect to the consolidated
taxable year an amount greater than that required by paragraphs 6 and 7 hereof,
then the full amount of such overpayment shall be Promptly refunded by Citigroup
to TAP. If it is determined that TAP owes additional amounts pursuant to
paragraphs 6 and 7 hereof, then TAP shall Promptly pay such amounts to
Citigroup.
(d) All payments made and liabilities incurred pursuant to this Agreement
shall be calculated using that method of accounting employed by the TAP Subgroup
members included in the Citigroup Consolidated Federal Tax Return.
9. Changes in Prior Year's Tax Liabilities.
In the event that the Consolidated Federal Income Taxes or the separate
Federal income tax liability of the TAP Subgroup which is used in paragraphs 6
or 7
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computations for any year covered by this Agreement is increased or decreased
through the mechanism of an amended return or returns, or by reason of the
examination of the returns by the IRS, the amount due from TAP for payment of
taxes under paragraphs 6 and 7 hereof, and the amounts to be allocated to the
Group Deficit Members under the Travelers Tax Sharing Agreement for each year,
shall be recomputed by Citigroup to reflect the adjustments to taxable income,
tax and tax credits for the taxable year. In accordance with such recomputations
and no later than the date Citigroup pays, receives or is otherwise charged or
credited funds by the IRS additional sums shall be paid Promptly by TAP to
Citigroup, or by Citigroup to TAP, as applicable, regardless of whether a TAP
Subgroup subsidiary has become a Departing Member (as defined in paragraph 10
hereof) subsequent to the taxable year of recomputation.
10. Departing Members.
(a) The term "Departing Member," as used in paragraph 11, shall mean the
TAP Subgroup at the time when it is no longer includible in the Citigroup
Affiliated Group.
(b) In applying this Agreement to a Departing Member for the final taxable
year in which its income, gains, losses, deductions and tax credits are required
to be included in a Consolidated Federal Tax Return:
(i) The amount required to be paid by a Departing Member under the
provisions of paragraphs 6 and 7 hereof and
(ii) The amount that such Departing Member is entitled to receive under
the provisions of paragraph 7 of the Travelers Tax Sharing Agreement, shall be
determined by taking into account the income, gains, losses, deductions and tax
credits of such Departing Member only for the fractional part of such year as
the Departing Member was a member of the Citigroup Affiliated Group and included
in the Consolidated Federal Tax Return, except that this subparagraph 10(b)
shall not be construed to amend, alter, augment or detract from the rights and
obligations of such Departing Member, Citigroup, or TAP, as applicable, as shall
or may be provided otherwise by contract or agreement executed as part of the
cessation of membership in the Citigroup Affiliated Group. Such determination
shall be made on the basis of actual results during such part of such year
except that allocations may be made with respect to any partial month and that
any item occurring in a partial month that does not occur in the ordinary course
of business on a regularly recurring basis shall be allocated to the portion of
the month in which it actually occurs as otherwise provided if such method
conforms with then existing regulations applicable to such computations under
the provisions of the Code.
(c) After the filing of the Consolidated Federal Tax Return for the last
taxable year the Departing Member was included therein, the Departing Member
will be informed of the amount of consolidated carryovers as of the end of the
taxable year or period which are attributable to the Departing Member, as
provided by Treasury Regulations section 1.1502-21.
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(d) To the extent that the Departing Member (or any of its subsidiaries or
subgroups) could actually carry back to a Consolidated Federal Tax Return a
separate return net operating loss, such Departing Member shall inform Citigroup
in writing that such entity or subgroup may carryback such loss. In the case of
any such notification, such net operating loss may be carried back to a
Consolidated Federal Return, provided that Citigroup consents in writing to the
carryback, such consent not to be unreasonably withheld.
(e) If a Departing Member or any of its subsidiaries receives notice of
any examination, claim, settlement, or proposed adjustment in respect of the tax
liability relating to periods before it became a Departing Member, the Departing
Member shall Promptly notify Citigroup in writing.
11. Stock-Based Incentive Compensation.
Notwithstanding any other provision of this Agreement to the contrary,
Citigroup, TAP and the TAP Subsidiaries, as applicable, acknowledge that certain
employees employed by TAP and the TAP Subsidiaries, including subsidiaries of
subsidiaries, or successors in interest thereof, or a Departing Member,
collectively referred to hereafter as "Employers" and each individually referred
to as an "Employer," are or may be participants in the Citigroup Capital
Accumulation Plan, the Citigroup Employee Incentive Plan, the Citigroup Employee
Stock Purchase Plan, the Citigroup Group Stock Option Plan, or predecessor,
successor or similar plans or arrangements using the stock of Citigroup
("Plan"), and that some portion of the employee compensation deductible by the
Employer arises from the provisions of the Code. To the extent that such
Employer recognizes a compensation expense deduction on a Tax Return ("Full Tax
Expense") which differs from the compensation expense charged to such Employer's
financial accounting income statement ("Book Expense"), such difference
hereafter referred to as "Compensation Expense Differential," the Employer shall
pay to Citigroup, if the Full Tax Expense exceeds the Book Expense, or Citigroup
shall pay to the Employer, in the year that the Full Tax Expense is recognized,
if the Book Expense exceeds the Full Tax Expense, an amount equal to the
Marginal Tax Benefit realized by the TAP Subgroup member pursuant to paragraph
1(s) herein (see Exhibit II). The parties hereto jointly acknowledge that the
liability arising under this paragraph 11 shall be continuing and ongoing for
all subsequent taxable periods, including TAP Subgroup Tax Returns filed for
post Citigroup Affiliated Group periods, and each such liability for each period
covered herein shall survive any subsequent transaction, unless such liability
shall be extinguished, with specificity, in an agreement subsequent to the
effective date hereof.
12. Tax Claims. Except as otherwise provided in paragraph 27 of this
Agreement:
Citigroup shall exclusively control and shall have the right to Dispose of
any Tax Claims relating to the Consolidated Federal Tax Return of Citigroup;
provided, however, in connection therewith, Citigroup is obligated under this
Agreement to act in good faith with regard to the TAP Subgroup companies
included in such return. TAP and the TAP Subgroup shall cooperate with Citigroup
and, to this end, shall include, but not be limited
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to, executing Promptly powers of attorney, protests, petitions, consents to
extend statutes of limitations and any other documents as Citigroup shall
determine to be necessary or appropriate. Citigroup's cost of handling a TAP
Subgroup Tax Claim, including legal and accounting fees, shall be allocated to
and paid by the TAP Subgroup. If the tax controversy relates to more than one
Member of the Citigroup Affiliated Group, costs and expenses shall be fairly
allocated among such members on the basis of time spent for legal, accounting or
other services rendered with respect to each Member's controversy or on such
other basis as may be determined to be appropriate by Citigroup.
13. Determination of Sums Due From and Payable to Citigroup.
Citigroup shall determine the sums due from and payable to TAP and the TAP
Subgroup with respect to Federal income taxes under the foregoing provisions of
this Agreement. TAP agrees to provide Promptly to Citigroup such information as
shall reasonable be necessary to make such determinations.
14. Combined, Consolidated or Unitary State and Local Taxes.
The provisions of paragraphs 14 through 25 shall apply to state and local
taxes for which liability is to be computed on the basis of a combined,
consolidated or unitary state or local tax return of the character filed by the
Citigroup State Group. The combined, consolidated or unitary state and local
taxes provided for in this Agreement are referred to herein respectively as
"Citigroup Combined State Return Taxes" and such tax return shall be referred to
herein respectively as the "Citigroup Combined State Tax Return" "Combined State
Return Taxes" shall mean "Citigroup Combined State Return Taxes".
15. State Parent as Agent.
The State Parent shall be the sole agent for the Citigroup State Group in
all matters relating to liability for Combined State Return Taxes for such
group. TAP, or any member of the TAP Subgroup, shall not cause the termination
of such agency. The TAP State Subgroup shall not have authority to act for or to
represent itself in any such matter. TAP and its subsidiaries shall cooperate
fully in providing the State Parent, as appropriate, with all information and
documents necessary or desirable to enable State Parent to perform its
obligations under paragraphs 15 through 25, including completion of state and
local governmental tax audits in connection with such Combined State Tax Returns
and determination of the proper liability for such Combined State Return Taxes
of the entities included in returns thereof.
16. Tax Returns.
(a) The State Parent shall include the TAP State Subgroup where it is
obligated to file Combined State Tax Returns including such Subgroup. The TAP
State Subgroup, however, shall Promptly prepare and forward to the State Parent
pro forma state and local income or franchise tax returns with related
allocation and apportionment factor data for it in such form and at such times
as the State Parent may reasonably request. In addition, TAP shall prepare and
forward, or cause to be prepared and forwarded, to the State Parent at least
five days prior to the last permissible date for
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payments set forth in paragraph 18 hereof sufficient information for the State
Parent to prepare the calculations referred to in such paragraph.
(b) At the State Parent's request, the TAP State Subgroup shall join in
filing any Combined State Tax Return to be filed in any applicable jurisdictions
and, if required, shall execute Promptly its consent to each such filing on any
form as may be prescribed therefor. The decision of the Citigroup Tax Officer,
shall, subject to the provisions of this Agreement, be binding in any dispute
between the State Parent and the TAP State Subgroup, for example, as to what tax
position should be taken with respect to any item or transaction of the TAP
State Subgroup includible in any Combined State Tax Return; provided, however,
in connection therewith, such Citigroup Tax Officer is obligated under this
Agreement to act in good faith with regard to TAP Subgroup companies included in
such return.
17. State Tax Obligation of State Parent.
Citigroup, through the State Parent, agrees to pay the Combined State
Return Taxes arising from filing any Combined State Tax Return. In the event
that TAP or any of its subsidiaries, or successor in interest thereto, directly
pays or causes to pay all or a portion of the Combined State Return, the State
Parent shall Promptly indemnify TAP to the extent such payment exceeds TAP State
Subgroup's allocable share of the Combined State Tax Return Liability, as
determined herein. This obligation shall be continuing and ongoing and each such
liability shall survive any subsequent transaction, unless such liability shall
be extinguished, with specificity, in an agreement subsequent to the effective
date hereof.
18. Computation of the TAP State Subgroup's Share of Combined State
Return Taxes Combined State Tax Return Liability.
(a) TAP will pay to Citigroup an amount equal to the tax liability of the
respective TAP State Subgroup for each taxable period and for each state in
which such TAP State Subgroup joined in the filing of a Combined State Tax
Return, determined as if the TAP State Subgroup had filed a separate combined
state or local tax return for such subgroup, except to the extent that such
amount is not consistent with the specific methodology described below. In
determining the separate combined tax liability of the TAP State Subgroup, the
amount of such liability shall be computed without taking into account any
carryback or carryover of tax attributes for which reimbursement is provided
under paragraph 20. The TAP State Subgroup for purposes of determining its
separate combined return liability shall be entitled to the benefit of any and
all elections affecting the computation of such separate combined return
liability. The TAP State Subgroup shall not be restricted by any elections
included in any Combined State Tax Return; provided, however, if the TAP State
Subgroup election creates an allocation of less than the combined return
liability, the shortfall will be allocated pro rata to the members of the
combined return.
(b) The TAP State Subgroup's share of its liability for the Combined State
Return Taxes allocated to the TAP State Subgroup for each taxable year shall be
a
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separate, distinct and absolute liability of TAP, not otherwise subject to
offset or reduction, for any reason, without the express, written consent of the
Citigroup Tax Officer. Such liability may be reallocated and assessed to TAP
consistent with the terms of this Agreement, for the period up to and including
the date of the first anniversary of the date upon which there was a Final
Determination of Combined State Tax Return liability for the period covered by
this Agreement, and such liability shall be continuing and ongoing, and each
such liability for each period covered herein shall survive any subsequent
transaction, unless such liability shall be extinguished, with specificity, in
an agreement subsequent to the effective date hereof.
(c) The specific methodology for computing the TAP State Subgroup's share
of its liability for the Combined State Return Taxes shall conform to one of the
methods presented in Exhibit I, except to the extent that such liability is not
otherwise determined under a separate state tax allocation agreement. The
methods presented in Exhibit I depict hypothetical situations only and shall not
be interpreted or construed as providing either rights or obligations
inconsistent with the express terms of this Agreement. The decision of the
Citigroup Tax Officer shall, subject to the provisions of this agreement, be
binding as to which method shall be employed in the equitable allocation of a
Combined State Return Tax liability, and the method employed need not be
consistent with the one employed in allocating a Combined State Tax Return
liability in prior or subsequent tax years.
19. Time for Payments.
The obligations of the TAP State Subgroup under paragraph 18 herein shall
be determined and paid as follows:
(a) Promptly after the end of the third, fifth, eighth and eleventh month
of each combined or consolidated state or local taxable year or other applicable
state due date used by the State Parent, the State Parent shall make a
reasonable determination of the TAP State Subgroup's separate combined state or
local tax liability which the TAP State Subgroup would be required to pay as
estimated tax payments on a separate combined return basis for such period
employing the same method for calculating estimated tax installment payments as
that used by the State Parent pursuant to the provisions of paragraph 18, for
each state or locality based upon its operating results for such period. TAP
shall Promptly pay to Citigroup the amount of such liability upon presentation
of such estimate.
(b) Before the unextended due date of the Combined State Tax Return, TAP
shall Promptly pay to Citigroup the entire amount estimated to be due and
payable from the TAP State Subgroup pursuant to paragraph 18 hereof, less all
amounts previously paid with respect to such TAP State Subgroup for such year
pursuant to subparagraph 19(a).
(c) If upon the filing of the Combined State Tax Return, it is determined
that TAP has paid to Citigroup an amount greater than that required to be paid
by TAP pursuant to paragraph 18 hereof, then the full amount of such overpayment
shall be
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Promptly paid and refunded by Citigroup to TAP. If it is determined that TAP
owes additional amounts pursuant to paragraph 22 hereof, then TAP shall Promptly
pay such amounts to Citigroup.
20. Reimbursement for the use of TAP State Subgroup State Tax
Attributes.
TAP shall be entitled to reimbursement from Citigroup for any tax
attribute (including, but not limited to, net operating loss, net capital loss,
net section 1231 loss or investment tax credit) which was not used by the TAP
State Subgroup in computing its separate combined return liability pursuant to
paragraph 17, only if such attribute results in a current tax benefit in any
Combined State Tax Return. In the case of an attribute other than a tax credit,
the amount of such reimbursement shall be as determined by Exhibit I. In the
case of a tax credit, the amount of such reimbursement shall be equal to the
amount of the credit. Amounts so determined pursuant to this paragraph 20 shall
be Promptly paid by Citigroup to TAP. This paragraph 20 shall not be construed
in such a manner that TAP or the TAP State Subgroup shall be entitled to a
double benefit with respect to such tax attribute.
21. Adjustments when a Member of the TAP State Subgroup ceases to be
included in a Combined State Tax Return.
In the event that a Member of the TAP State Subgroup ceases to be included
in a Combined State Tax Return (a "Departing TAP State Subgroup Member"), the
following adjustments shall be made:
(a) The amounts required to be paid by TAP under paragraphs 18 and 19(c)
and the amount TAP is entitled to receive under paragraph 20 for the last
taxable year in which such Departing TAP State Subgroup Member is included in
the Combined State Tax Return shall be determined by Citigroup by taking into
account the income, deductions and tax credits of such Departing TAP State
Subgroup Member only for the fractional part of such year as the Departing TAP
State Subgroup Member was included in the Combined State Tax Return. Such
determination shall be made on the basis of actual results during such part of
such year except that allocations may be made with respect to any partial month
and that any item occurring in a partial month that does not occur in the
ordinary course of business on a regularly recurring basis shall be allocated to
the portion of the month in which it actually occurs.
(b) After the filing of the Combined State Tax Return for the last taxable
year that the Departing TAP State Subgroup Member was included therein, the
Departing TAP State Subgroup Member will be informed of the amount of combined
or consolidated carryovers as of the end of the taxable year or period which is
attributable to the Departing TAP State Subgroup Member.
22. Change in Prior Year's Tax Liability.
In the event that the Combined State Return Taxes or the separate state or
local tax liability referred to in paragraph 18 hereof for any year covered by
this Agreement is or would be increased or decreased by reason of filing an
amended return or returns, or
12
by reason of examination of the returns by either the IRS or the state or local
taxing authority, the amounts due from the State Parent for payment of taxes
under paragraph 18 hereof, or the amount to be paid by Citigroup as
reimbursement for the use of the TAP State Subgroup's tax attributes pursuant to
paragraph 20, shall be recomputed by the State Parent, on behalf of the State
Parent, to reflect the adjustments to taxable income and tax credits for the
taxable year. In accordance with such recomputations, additional sums shall be
paid by TAP to Citigroup or paid by Citigroup to TAP, regardless of whether the
TAP State Subgroup has ceased to be included in the Combined State Tax Return
subsequent to the taxable year of recomputation.
23. Refunds from Separate Return Year.
Subject to paragraph 21 hereof, and if allowable under applicable state
law, the TAP State Subgroup shall be entitled to receive any and all state or
local tax refunds, including interest, received from the carryback of losses,
deductions or tax credits of such TAP State Subgroup to a separate return year
of such TAP State Subgroup.
24. Tax Claims.
The State Parent shall exclusively control and Dispose of any Tax Claims
relating to a Combined State Tax Return for any taxable year during which this
Agreement is in effect. TAP shall cooperate with the State Parent and such
cooperation shall include, but not be limited to, executing Promptly protests,
petitions, or any other documents as the State Parent shall determine to be
necessary or appropriate. The State Parent's cost of handling a TAP Tax Claim,
including legal and accounting fees, shall be allocated to and paid by TAP. If
the Tax Claim does not relate solely to the TAP State Subgroup, such cost and
expense shall be fairly allocated among TAP State Subgroup Members on the
Combined State Tax Return on the basis of legal, accounting or other time spent
with respect to each such member's controversy or on such other basis as may be
determined to be appropriate by the State Parent.
25. Determination of Sums due from and payable to TAP.
The State Parent shall determine the sum due from and payable to TAP with
respect to state and local taxes under the foregoing provisions of this
Agreement. TAP agrees to provide the State Parent with such information as shall
reasonably be necessary to make such determinations.
26. Settlement of Tax Controversy.
The State Parent shall notify TAP Promptly of an item of Tax Claim for any
taxable period for which any TAP Subgroup Member was a Member of the
Consolidated Federal Tax Return or the Combined State Tax Return. The failure of
the State Parent to notify TAP does not abrogate any liability otherwise arising
under this Agreement, if TAP reasonably believes that the State Parent is
proposing to Dispose of any item of tax controversy and such Disposition creates
an obligation by TAP to make a payment pursuant to this Agreement and TAP
objects to such settlement, the State Parent, at its sole option, shall grant
TAP, at TAP's sole cost and expense, the right to undertake the
13
defense of, and to Dispose of (exercising reasonable business judgment) the item
of tax controversy on behalf of, and for the account of, the State Parent. If
TAP shall fail, within a reasonable time after receipt of notice of such right
under this paragraph, to defend such Tax Claim, the State Parent shall have the
right, but not the obligation, to undertake the defense of and to Dispose of
(exercising reasonable business judgment) such item
27. Certain Tax Matters Relating to the Distributions.
(a) Notwithstanding anything in this Agreement to the contrary:
(i) Citigroup shall exclusively control and shall have the right to
Dispose of all Tax Claims relating to a Consolidated Federal Tax Return or a
Citigroup Combined State Tax Return for which it would bear the financial
responsibility of any Tax pursuant to this Agreement (giving effect to any
indemnification obligations hereunder).
(ii) Subject to paragraphs 27(a)(v) and (vi) hereof, TAP shall exclusively
control and have the right to Dispose of all Tax Claims for which it would bear
100 percent of the financial responsibility of any Tax assessed pursuant to this
Agreement (giving effect to any indemnification obligations hereunder).
(iii) If all or any part of a Tax Claim would require Citigroup and TAP
both to have financial responsibility for any Tax assessed, then Citigroup shall
exclusively control and have the right to Dispose of such Tax Claim, but
Citigroup must act in good faith with regard to the TAP Subgroup. Subject to
paragraphs 27(a)(v) and (vi) hereof, Citigroup will not Dispose of any such Tax
Claim without TAP's prior written consent, which consent shall not be
unreasonably withheld or delayed. Further, with respect to Tax Claims governed
by this paragraph 27(a)(iii), if one party wishes to Dispose of all or part of
such Tax Claim and the other party does not, (A) the party desiring to Dispose
can make a payment to the other party, in an amount equal to the amount the
governmental authority is willing to accept in settlement of the Tax Claim(s),
in full satisfaction of its obligations with respect to such Tax Claim(s) and
(B) the party receiving such payment will become solely responsible for any Tax
assessed with respect to such Tax Claim(s).
(iv) Citigroup and TAP shall jointly control any Tax Claims regarding
Spin-Off Taxes for which TAP bears the financial responsibility pursuant to this
Agreement.
(v) Notwithstanding the foregoing, Citigroup shall have the right to
Dispose of all or any part of any Tax Claim (including Tax Claims for which TAP
would bear 100 percent of the financial responsibility) without TAP's consent,
provided, that if TAP's indemnification obligations pursuant to this Agreement
with respect to such Tax Claim that is the subject of such Disposition is (A)
less than $10 million in the aggregate for the examination cycle to which the
Disposition relates, TAP will remain liable for such Taxes and (B) at least $10
million in the aggregate for the examination cycle to
14
which the Disposition relates, TAP shall have no further indemnification
obligation with respect to the Tax Claim(s) that are the subject of such
Disposition.
(vi) If the parties hereto disagree as to any matter arising under
paragraph 27 of this Agreement, the parties shall cooperate in good faith to
resolve any such dispute, and any agreed-upon amount shall be paid to the
appropriate party. If the parties are unable to resolve any such dispute within
fifteen business days thereafter, such dispute shall be resolved by an
internationally recognized accounting firm or law firm acceptable to both
Citigroup and TAP. The decision of such firm shall be final and binding. The
fees and expenses incurred in connection with such decision shall be shared by
Citigroup and TAP in accordance with the final allocation of the Tax liability
in dispute in relation to the original amount claimed to be due by Citigroup and
TAP. Following the decision of such firm, the parties shall each take (or cause
to be taken) any action that is necessary or appropriate to implement such
decision, including, without limitation, the filing of amended Tax Returns and
the prompt payment of underpayments or overpayments, with interest calculated on
such underpayments or overpayment at the applicable rate from the date such
payment was due.
(b) Cooperation on Tax Matters. Citigroup and TAP shall cooperate by
furnishing or causing to be furnished to each other, upon request, as Promptly
as practicable, such assistance and information (including access to books and
records relating to Citigroup and its subsidiaries and TAP and its subsidiaries,
as the case may be) as is reasonably necessary to obtain a private letter ruling
or supplemental ruling from the IRS regarding the tax-free status of the
Distributions, for the preparation and filing of any Tax Return, for the
preparation for, and conduct of, any audit and for the prosecution or defense of
any claim, suit or proceeding relating to Taxes of Citigroup and its
subsidiaries and TAP and its subsidiaries. Such assistance shall include making
employees and representatives available upon the reasonable request of the
requesting party during normal business hours and in a manner that does not
interfere unreasonably with the conduct of the business of the other party.
Citigroup and TAP shall retain or cause to be retained all pertinent books and
records until the applicable period for assessment under applicable law (giving
effect to any and all extensions or waivers) has expired and to abide or cause
the abidance with all record retention agreements entered into with any
governmental authority. Each of Citigroup and TAP shall give reasonable notice
to the other party prior to transferring, discarding or destroying any such
books and records relating to Tax matters. Citigroup and TAP each shall execute
and deliver such powers of attorney and other documents that are reasonably
requested to carry out the intent of this Agreement.
(c) TAP Representations, Warranties and Covenants with respect to the
Distributions. TAP affirms that the description of facts, representations,
covenants and assumptions, as they relate to TAP and the TAP Subgroup, that are
included in the ruling request initially submitted to the IRS with respect to
the Distributions and in any supplemental submissions thereto (the "Ruling
Request"), are and will be true, correct and complete as submitted and will
continue to be on the date of and after the Distributions.
15
(d) Indemnity for Spin-Off Taxes and Certain Restructuring Taxes.
(i) TAP will be 100 percent liable for all Losses arising from Spin-Off
Taxes attributable to any act, failure to act or omission by TAP or any member
of the TAP Subgroup, or the failure of any representation made in the Ruling
Request with respect to TAP, the TAP Subsidiaries or The Travelers Insurance
Company ("TIC") to be true. The indemnity for Losses arising from Spin-Off Taxes
addressed in this paragraph 27(d)(i) shall be fully "grossed up" for any Losses
resulting from the receipt of any such indemnity payments. (ii) Citigroup will
be responsible for any Losses arising from (A) the failure of the distribution
by TAP of 100 percent of the stock of TIC prior to the IPO to be tax-free under
section 355 of the Code, except to the extent that such Losses are attributable
to any act, failure to act or omission by TAP or any member of the TAP Subgroup,
or the failure of any representation made in the Ruling Request with respect to
TAP, the TAP Subsidiaries or TIC to be true or (B) Spin-Off Taxes other than
Spin-Off Taxes that are the responsibility of TAP under paragraph 27(d)(i)
hereof.
(iii) Citigroup will be responsible for any Taxes which result from the
(A) recapitalization of Citigroup common stock held by TAP into Citigroup series
YYY preferred shares and (B) recognition of deferred intercompany gain with
respect to Citigroup shares held by TAP that is triggered by the contribution of
such shares to TIC by TAP before the External Distribution or the IPO.
Citigroup's liability for such Taxes shall be limited to $50 million.
(iv) For purposes of subparagraphs (d)(i) and (ii) of this paragraph 27,
references to representations made in the Ruling Request with respect to TIC
shall be to the best knowledge of the management of TAP.
(e) To the extent that payments made by Citigroup to TAP pursuant to the
terms of the Indemnification Agreement between Citigroup and TAP (relating to
asbestos indemnities), dated as of March 27, 2002, are deductible by Citigroup
and taxable income to TAP, Citigroup shall pay TAP an amount equal to the Tax on
the amount that is both deductible by Citigroup and taxable income to TAP. The
indemnity for Taxes addressed in this paragraph 27(e) shall be fully "grossed
up" for any Taxes resulting from the receipt of any such indemnity payments.
(f) TAP shall indemnify Citigroup for any Taxes arising from the
disposition of Travelers Asset Funding Corp. to TAP prior to the IPO but only to
the extent that such Taxes exceed $1 million.
(g) Any indemnity payments that are made between the parties pursuant to
this paragraph 27 will be treated as if they were made immediately prior to the
IPO or in such other manner as may be required by the private letter ruling
issued by the IRS with respect to the Distributions.
16
(h) Notwithstanding anything in this Agreement to the contrary, no party
to this Agreement or any of its subsidiaries shall be liable for any
consequential damages, damages for lost profits or other similar types of
damages.
(i) To the extent that retirement and other benefit payments made by TIC
to certain employees or former employees of TIC, TAP or their respective
subsidiaries pursuant to the Contribution and Assumption Agreement between TIC
and TAP, dated as of March 18, 2002, are not deductible by TIC, TAP shall
indemnify TIC in an amount equal to the Tax on the amount that is not deductible
by TIC. The indemnity for Taxes addressed in this paragraph 27(i) shall be fully
"grossed up" for any Taxes resulting from the receipt of any such indemnity
payments.
(j) To the extent that PFS recognizes net taxable income solely from the
transactions relating to TAP's assignment of the Connecticut River Plaza lease
to PFS ("CRP Income"), TAP shall pay Citigroup, within 30 days after the end of
each taxable year, an amount equal to (1) the 90-day LIBOR rate in effect as of
the end of such taxable year, as published in the Wall Street Journal,
multiplied by (2) the amount of federal income tax paid or payable by PFS with
respect to the CRP Income less the cumulative amount of such tax recovered
through amortization of the CRP Income (on a straight line basis for the
remaining term of the Connecticut River Plaza lease). In the event that interest
is assessed to Citigroup based upon an IRS audit adjustment, such assessment
(net of any offsetting benefits arising from the same transaction) will be
Promptly paid by TAP to Citigroup.
28. Other Taxes.
(a) TAP assumes responsibility and liability for all TAP Subsidiaries'
Taxes not covered by this Agreement, including without limitation, state, local
(filed either as separate returns or in combination with other TAP affiliates)
and foreign income taxes and excise taxes, property taxes, premium taxes,
payroll taxes and employee withholding taxes relating to the business of any one
or more subsidiaries of TAP.
(b) Unless otherwise provided in an Applicable Restructuring Document (as
such term is defined in the Intercompany Agreement, dated as of March 26, 2002,
by and between TAP and Citigroup (the "Intercompany Agreement")), TAP assumes
responsibility and liability for and shall indemnify Citigroup against all
sales, use, privilege, transfer, documentary, gains, stamp, duties, recording
and similar Taxes and fees imposed upon any party incurred in connection with
the Reorganization (as such term is defined in the Intercompany Agreement).
29. Execution of Documents.
Citigroup and TAP, acting through their duly authorized officers, shall
execute or cause to be executed Promptly any and all joinders and consents,
authorizations and other documents required to effectuate this Agreement, as of
such date provided therein.
30. Amendment.
17
This Agreement may be amended from time to time by agreement in writing
executed by all of the parties hereto or all of the parties then bound hereby.
This Agreement constitutes the entire agreement with respect to the subject
matter hereof and supersedes all prior written and oral understandings with
respect thereto. No representation, promise, inducement or statement of
intention has been made by the parties hereto which is not embodied in this
Agreement or the written statements, or other documents delivered pursuant
hereto, and no party shall be bound by or liable for any alleged representation,
promise, inducement or statement of intention not so set forth.
31. Miscellaneous.
(a) Captions. The paragraph captions are inserted in the Agreement merely
for convenience and are not to be construed as a part of this Agreement, or in
any way limiting and affecting the language of any paragraph of this Agreement.
(b) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original, but all of which shall constitute but one
agreement.
(c) Successors. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their successors and assigns, as well as any
additional parties hereto, their successors and assigns, as well as any
additional parties hereto, their successors and assigns. To the extent that this
Agreement imposes obligations upon any Member of the Citigroup Affiliated Group
(other than the TAP Subgroup or TAP State Subgroup), Citigroup will perform or
cause such Member to perform such obligations, and this Agreement is enforceable
only against Citigroup.
(d) Severability. In the event that any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable, the same shall not affect any other provision of this
Agreement, and this Agreement shall be construed in a manner which, as nearly as
possible, reflects the original intent of the parties.
(e) No Prejudice. This Agreement has been jointly prepared by the parties
hereto and the terms hereof shall not be construed in favor of or against any
party on account of its participation in such preparation.
(f) Words in Singular and Plural Form. Words used in the singular form in
this Agreement shall be deemed to import the plural, and vice versa, as the
sense may require.
(g) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which together shall constitute a
single agreement.
(h) Parties in Interest. Nothing expressed or implied in this Agreement is
intended or shall be construed to confer upon or give to any person, firm or
corporation, other than the parties hereto, any rights or remedies under or by
reason of this Agreement or any transaction contemplated hereby.
18
(i) Statutory References. References to the Code shall mean the Internal
Revenue Code of 1986, as amended and as in effect from time to time, and any law
which shall have been a predecessor or shall be a successor thereto. A reference
to any section of the Code means such section as is in effect from time to time
and any comparable provision of any predecessor or successor law.
(j) Notice.
Any notice, request or other communication required or permitted in this
agreement shall be in writing and shall be sufficiently given, if personally
delivered or is sent by registered or certified mail, postage prepaid, addressed
as follows:
To Citigroup: Citigroup, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
Chief Tax Officer
To TAP: Travelers Property Casualty Corp.
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Vice President, Taxes
32. Governing Law.
This Agreement shall be governed by the law of the State of New York.
33. Travelers Tax Sharing Agreement.
The Travelers Tax Sharing Agreement shall survive this Agreement and shall
remain in full force; provided, however, that if any provision in the Travelers
Tax Sharing Agreement is inconsistent with a provision in this Agreement, the
provision of this Agreement shall control.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written or have executed Attachment I, as
amended from time to time, effective as of the date noted therein.
CITIGROUP INC.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxx, Chief Tax Officer
TRAVELERS PROPERTY CASUALTY CORP.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Xxxxxx X. Xxxx, Vice President, Tax
20
EXHIBIT 10.3
INDEMNIFICATION AGREEMENT
by and between
CITIGROUP INC.
and
TRAVELERS PROPERTY CASUALTY CORP.
Dated as of
March 25, 2002
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ..................................................... 3
Section 1.1 Definitions ............................................. 3
ARTICLE II CITIGROUP INDEMNIFICATION ...................................... 9
Section 2.1 Citigroup's Indemnification ............................. 9
ARTICLE III ASBESTOS-RELATED INCURRALS; NET INCURRALS ..................... 11
Section 3.1 Establishment of Asbestos-Related Incurrals ............. 11
Section 3.2 Exclusions from Asbestos-Related Incurrals .............. 11
Section 3.3 Calculation of Net Incurrals ............................ 12
ARTICLE IV REPORTS ........................................................ 12
Section 4.1 Quarterly Reports ....................................... 12
Section 4.2 Additions to Quarterly Reports .......................... 12
Section 4.3 Certification of Quarterly Reports ...................... 12
Section 4.4 Consultations Regarding Quarterly Reports ............... 13
Section 4.5 Confidentiality of Reports .............................. 13
ARTICLE V REMITTANCES ..................................................... 14
Section 5.1 Payments ................................................ 14
Section 5.2 Interest Payments ....................................... 14
Section 5.3 Reimbursable Net Incurrals .............................. 15
Section 5.4 Disputes ................................................ 15
ARTICLE VI ENFORCEMENT OF RIGHTS .......................................... 17
Section 6.1 Enforcement of Rights ................................... 17
ARTICLE VII COMMENCEMENT AND TERMINATION .................................. 18
Section 7.1 Commencement and Termination ............................ 18
ARTICLE VIII CONFIDENTIALITY .............................................. 19
Section 8.1 Confidentiality ......................................... 19
ARTICLE IX ARBITRATION .................................................... 20
Section 9.1 Arbitration ............................................. 20
ARTICLE X THIRD PARTY BENEFICIARIES; ASSIGNMENTS AND SURVIVAL ............. 22
Section 10.1 Third Party Beneficiaries .............................. 22
Section 10.2 Assignments and Delegations ............................ 23
Section 10.3 Survival ............................................... 23
i
ARTICLE XI MISCELLANEOUS .................................................. 23
Section 11.1 Governing Law .......................................... 23
Section 11.2 Notices ................................................ 23
Section 11.3 Entire Agreement; Amendments ........................... 25
Section 11.4 Counterparts ........................................... 25
Section 11.5 Currency ............................................... 25
Section 11.6 Headings ............................................... 25
Section 11.7 No Waiver .............................................. 25
ii
This INDEMNIFICATION AGREEMENT (this "Indemnification Agreement") is
made and entered into as of March 25, 2002, by and between Citigroup Inc., a
Delaware corporation ("Citigroup"), and Travelers Property Casualty Corp.
(formerly known as The Travelers Insurance Group Inc.), a Connecticut
corporation ("Travelers"). This Indemnification Agreement shall only be
effective upon the closing of the initial public offering of shares of common
stock of Travelers (the "Offering"). This Indemnification Agreement is being
executed contemporaneously with the closing of this Offering and shall be null
and void should such closing not occur.
WHEREAS, Travelers conducts property and casualty insurance
operations and insurance-related activities through certain insurer subsidiaries
as of the Effective Date and former insurer subsidiaries as of the Effective
Date (the "Insurer Subsidiaries") and other Affiliates (as defined herein) as of
the Effective Date; and
WHEREAS, in connection with the Offering, Citigroup has agreed to
indemnify Travelers for certain specified losses, liabilities and expenses that
may be incurred by Travelers directly or through its Insurer Subsidiaries and
Affiliates arising out of or relating to the Asbestos-Related Liabilities (as
defined herein) to the extent and upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereto hereby agree as follows:
2
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used herein, the following terms shall
have the following respective meanings:
"AAA" shall have the meaning set forth in Section 9.1 hereof.
"Affiliate" of any Person shall mean another Person that directly or
indirectly controls, is controlled by, or is under common control with, such
first Person, where "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management policies of a
Person, whether through ownership of voting securities, by contract, as trustee
or executor or otherwise.
"Annual Retention Amount" shall mean the sum of Net Incurrals to be
borne by Travelers under this Indemnification Agreement in any calendar year on
a pre-tax basis equal to one hundred fifty million dollars ($150,000,000).
"Applicable Law" shall mean any applicable order, law, statute,
regulation, rule, ordinance, writ, injunction, directive, judgment, decree,
principle of common law, constitution or treaty enacted, promulgated, issued,
enforced or entered by any Governmental Entity applicable to the parties hereto,
or any of their respective businesses, properties or assets.
3
"Appointed Actuary" shall mean the actuary duly appointed by the
Travelers' board of directors to provide statements of actuarial opinion to
state insurance regulatory authorities.
"Asbestos-Related Incurrals" shall have the meaning set forth in
Section 3.1 hereof.
"Asbestos-Related Liabilities" shall mean all liabilities, costs,
expenses, fees, (including, without limitation, legal, expert, witness or
otherwise), loss, damages (including, without limitation, punitive,
extracontractual, exemplary, special or otherwise), judgments, equitable relief,
obligations, settlements, estimates (including, without limitation, estimates
associated with IBNR, case estimates for claim and expense, and any other
estimates) or any other amounts incurred by Travelers, its Affiliates or the
Insurer Subsidiaries (hereinafter referred to collectively, for purposes of this
definition of Asbestos-Related Liabilities only, as "Liabilities") to the extent
caused by, arising out of or relating to asbestos, provided, however that
Asbestos Related Liabilities shall not include (i) Liabilities arising from the
presence of asbestos in real property owned and/or occupied by Travelers, its
Affiliates or the Insurer Subsidiaries; (ii) Liabilities or estimated
Liabilities under or arising out of a Subject Contract issued or renewed on or
after the Effective Date; (iii) any Liabilities acquired by Travelers, its
Affiliates or the Insurer Subsidiaries by virtue of acquisitions, mergers,
consolidations, or other transactions (whether effected by portfolio transfer,
reinsurance or otherwise) which are consummated on or after the Effective Date
(excluding acquisitions of business otherwise covered under this Indemnification
Agreement from Persons that are Affiliates prior to the Effective Date); (iv)
any Liabilities to the extent increased by amendments or other
4
modifications to the intercompany reinsurance pooling agreements among the
Insurer Subsidiaries on or after the Effective Date, which amendment or
modification functions, directly or indirectly, in any manner, to materially and
adversely affect Citigroup's obligations hereunder, or (v) the salaries and
expenses of employees as well as office and other overhead expenses of any
nature of Travelers, its Affiliates or the Insurer Subsidiaries, regardless of
whether such costs and expenses are attributable to asbestos.
"Ceded Reinsurance" shall mean all reinsurance pursuant to
contracts, binders, certificates, policies, treaties or other evidence of
reinsurance pertaining to Asbestos-Related Liabilities and ceded by the Insurer
Subsidiaries to reinsurers.
"Collectible Reinsurance" shall mean reinsurance recoverables which
are estimated to be payable under the terms of Ceded Reinsurance contracts,
binders, certificates, policies, treaties or other written evidence of Ceded
Reinsurance with any third party reinsurer which are reflected on the statutory
financial statements of the Insurer Subsidiaries, net of any estimated
allowances for uncollectible reinsurance, which shall be appropriately adjusted
to take into account reserves established for purposes of uncollectible
reinsurance relating to the Asbestos-Related Liabilities.
"Confidential Material" shall have the meaning set forth in Section
8.1 hereof.
"Cumulative Tax Benefit Adjustment Amount" shall mean the sum of the
Tax Benefit Adjustment Amounts with respect to each calendar quarter commencing
with the first quarter of 2002.
"Dispute" shall have the meaning set forth in Section 9.1 hereof.
5
"Dispute Notice" shall have the meaning set forth in Section 5.4
hereof.
"Disputed Asbestos-Related Liabilities" shall have the meaning set
forth in Section 5.4 hereof.
"Effective Date" shall mean the date of consummation of the initial
public offering of shares of common stock of Travelers Property Casualty Corp.
pursuant to the Registration Statement on Form S-1 (No. 333-82388).
"First Quarter Carryforward" shall have the meaning set forth in
Section 2.1(b).
"IBNR" shall mean incurred but not reported.
"Maximum Payment Amount" shall have the meaning set forth in Section
2.1(c) hereof.
"Net Incurrals" shall have the meaning set forth in Section 3.3
hereof.
"Overdue Rate" shall mean the "prime rate" as announced from time to
time by Citibank N.A., or its successor in interest.
"Person" shall mean an individual, corporation, partnership,
association, trust, limited liability company or any other entity or
organization of any kind or description whatsoever, including, without
limitation, a government or political subdivision or an agency or
instrumentality thereof.
"Quarterly Report" shall have the meaning set forth in Section 4.1
hereof.
6
"Reimbursable Net Incurrals" shall have the meaning set forth in
Section 5.3 hereof.
"Reserves" shall mean the aggregate (i) loss (including IBNR losses)
and expense reserves of Travelers, its Affiliates or the Insurer Subsidiaries
for Asbestos-Related Liabilities; (ii) reserves established to reflect Ceded
Reinsurance for Asbestos-Related Liabilities; and (iii) reserves established for
purposes of uncollectible reinsurance related to Asbestos-Related Liabilities.
"Reserving Methodologies" shall mean the methodologies, procedures,
judgments and assumptions used by Travelers, its Affiliates and the Insurer
Subsidiaries consistent with prior reserving policies or as required by
Applicable Law, to calculate and establish Reserves with respect to the
Asbestos-Related Liabilities.
"Rules" shall have the meaning set forth in Section 9.1 hereof.
"Second Quarter Carryforward" shall have the meaning set forth in
Section 2.1(b).
"Subject Contracts" shall mean binders, certificates, contracts,
policies, and coverage in place agreements and other written evidences of
insurance and reinsurance issued or assumed by an Insurer Subsidiary; provided,
however, "Subject Contracts" shall not include (i) any insurance, reinsurance or
other contracts issued or assumed by the Insurer Subsidiaries on and after the
Effective Date (except coverage in place agreements to the extent related to
binders, certificates, contracts, policies or other written evidences of
insurance issued or renewed prior to the Effective Date); (ii) any
7
amendments or other modifications to the intercompany reinsurance pooling
agreements among the Insurer Subsidiaries on or after the Effective Date, which
amendment or modification functions, directly or indirectly, in any manner, to
materially and adversely affect Citigroup's obligations hereunder and (iii) any
unaffiliated books of business acquired by the Insurer Subsidiaries by portfolio
transfer, reinsurance, merger, consolidation or otherwise on or after the
Effective Date.
"Supplementary Report" shall have the meaning set forth in Section
5.4(c).
"Tax Benefit Adjustment Amount" shall mean, with respect to any
calendar quarter, a positive amount equal to the (i) the year to date Net
Incurrals in excess of the Annual Retention Amount multiplied by (ii) the
highest marginal rate of United States federal income tax applicable to
Subchapter C corporations for the year which includes such quarter less (iii)
any Tax Benefit Adjustment Amount determined in a prior calendar quarter in the
same calendar year.
"Third-Party Indemnification Agreements" shall mean indemnification
agreements provided by Persons not a party to this Indemnification Agreement
which, directly or indirectly, indemnify Travelers, its Affiliates or the
Insurer Subsidiaries for Asbestos-Related Liabilities.
"Third Quarter Carryforward" shall have the meaning set forth in
Section 2.1(b).
8
ARTICLE II
CITIGROUP INDEMNIFICATION
Section 2.1 Citigroup's Indemnification. (a) Subject to the
limitations and other terms and conditions set forth in this Indemnification
Agreement, Citigroup hereby agrees to indemnify Travelers for Net Incurrals in
any individual calendar year in excess of the Annual Retention Amount for such
year; provided, however, notwithstanding any other provision of this
Indemnification Agreement to the contrary, the foregoing amounts shall be
subject to reduction as set forth in subsection (b) of this Section 2.1 and to
the Maximum Payment Amount set forth in subsection (c) of this Section 2.1.
(b) The aggregate indemnification amount to be paid by
Citigroup to Travelers pursuant to Section 2.1(a) in any calendar year shall be
reduced by the sum of the Tax Benefit Adjustment Amounts for each calendar
quarter in such year. The indemnification amount to be paid by Citigroup to
Travelers pursuant to Section 2.1(a) shall be calculated for the calendar
quarters in any calendar year as follows:
(1) First calendar quarter: the Net Incurrals for such calendar quarter
less the Annual Retention Amount less the Tax Benefit Adjustment
Amounts for such calendar quarter. If the result of the foregoing
calculation is negative, (i) Citigroup shall have no indemnification
obligations with respect to Net Incurrals for such calendar quarter
and (ii) such amount shall be referred to as the "First Quarter
Carryforward."
(2) Second calendar quarter: the Net Incurrals for such calendar quarter
less the absolute amount of the First Quarter Carryforward less the
Tax Benefit Adjustment Amount for such calendar quarter. If the
result of the foregoing
9
calculation is negative, (i) Citigroup shall have no indemnification
obligations with respect to Net Incurrals for such calendar quarter
and (ii) such amount shall be referred to as the "Second Quarter
Carryforward."
(3) Third calendar quarter: the Net Incurrals for such calendar quarter
less the absolute amount of the Second Quarter Carryforward less the
Tax Benefit Adjustment Amount for such calendar quarter. If the
result of the foregoing calculation is negative, (i) Citigroup shall
have no indemnification obligations with respect to Net Incurrals
for such calendar quarter and (ii) such amount shall be referred to
as the "Third Quarter Carryforward."
(4) Fourth calendar quarter: the Net Incurrals for such calendar quarter
less the absolute amount of the Third Quarter Carryforward less the
Tax Benefit Adjustment Amount for such calendar quarter. If the
result of the foregoing calculation is negative, Citigroup shall
have no indemnification obligations with respect to Net Incurrals
for such calendar year.
If any of these quarterly calculations produce a positive amount, Citigroup
shall remit said amount to Travelers in accordance with Article V.
(c) IN NO EVENT SHALL CITIGROUP'S AGGREGATE INDEMNIFICATION
OBLIGATIONS UNDER THIS INDEMNIFICATION AGREEMENT EXCEED AN AMOUNT EQUAL TO EIGHT
HUNDRED MILLION DOLLARS ($800,000,000) LESS THE CUMULATIVE TAX BENEFIT
ADJUSTMENT AMOUNT APPLIED TO THE NET INCURRALS RELATING TO AN AGGREGATE OF EIGHT
HUNDRED MILLION DOLLARS ($800,000,000) OF ASBESTOS-RELATED INCURRALS IN RESPECT
OF WHICH TRAVELERS WOULD BE ENTITLED TO AN INDEMNIFICATION PAYMENT UNDER SECTION
2.1(a) (THE "MAXIMUM PAYMENT AMOUNT").
10
ARTICLE III
ASBESTOS-RELATED INCURRALS; NET INCURRALS
Section 3.1 Establishment of Asbestos-Related Incurrals. The
Reserves established and recorded on the books and records (prepared in
accordance with either statutory accounting practices or GAAP) of Travelers or
any of its Insurer Subsidiaries or other Affiliates for Asbestos-Related
Liabilities shall be consistent with the Reserving Methodologies and in
accordance with (or as required to be modified by) Applicable Laws and
regulations. Paid activity plus the change in Reserve balances for each calendar
quarter for all Asbestos-Related Liabilities, commencing with the quarter
beginning January 1, 2002, shall be known as the "Asbestos-Related Incurrals"
for such quarter. In no event shall "Asbestos-Related Incurrals" include paid
activity and Reserves in respect of liabilities or estimated liabilities under a
Subject Contract issued or renewed on or after the Effective Date or Reserves
excluded by Section 3.2. It is understood that nothing in this Section 3.1 is
intended to exclude paid activity and Reserves in respect of liabilities or
estimated liabilities under future coverage in place agreements to the extent
related to binders, certificates, contracts, policies or other written evidences
of insurance issued or renewed prior to the Effective Date). Travelers shall
provide in writing the aggregate amount of Reserves existing on the books of
Travelers, its Affiliates and the Insurer Subsidiaries as of December 31, 2001.
Section 3.2 Exclusions from Asbestos-Related Incurrals.
Asbestos-Related Incurrals shall not include Reserves for any Asbestos-Related
Liabilities as determined in accordance with the Reserving Methodologies which
arise under insurance, reinsurance or other contracts written by the Insurer
Subsidiaries on or before the Effective Date but amended on or after the
Effective Date, and only to the extent that
11
the Asbestos-Related Liability would not have been covered under such insurance,
reinsurance or other contracts prior to the effective date of such amendment
based on the presence of an asbestos exclusion.
Section 3.3 Calculation of Net Incurrals. "Net Incurrals" shall mean
all Asbestos-Related Incurrals net of all:
(i) Reasonably anticipated salvage, subrogation and
other recoverables (other than in respect of Ceded Reinsurance); and
(ii) Collectible Reinsurance.
ARTICLE IV
REPORTS
Section 4.1 Quarterly Reports. Within 45 calendar days after the
close of each calendar quarter, Travelers shall deliver to the office of the
Chief Financial Officer of Citigroup a report (a "Quarterly Report") in form and
substance satisfactory to both parties hereto summarizing the Asbestos Related
Incurrals and Net Incurrals, if any, for the quarter as well as the calculations
necessary to arrive at the quarterly amount due from Citigroup according to this
Indemnification Agreement.
Section 4.2 Additions to Quarterly Reports. In addition, Travelers
shall provide such additional information and documentation as Citigroup may
reasonably request; provided, however, in no event shall Travelers disclose
documents or information privileged under the attorney client or work product
privileges or a substantially similar privilege under Applicable Law.
Section 4.3 Certification of Quarterly Reports. The Chief Financial
Officer of Travelers and the Appointed Actuary shall each certify that (i) the
Asbestos-Related Incurrals and the Net Incurrals specified in each Quarterly
Report have been
12
established and recorded on the books and records of Travelers, its Affiliates
or the Insurer Subsidiaries in a manner consistent with the Reserving
Methodologies and in accordance with (or as required to be modified by)
Applicable Laws and regulations and (ii) the Quarterly Report has been prepared
in all respects in accordance with the terms and conditions of this Indemnity
Agreement.
Section 4.4 Consultations Regarding Quarterly Reports. Prior to
making any payments required to be made by Citigroup under this Indemnification
Agreement, Travelers shall, at the request of Citigroup, make the Chief
Financial Officer, General Counsel, Appointed Actuary or any other relevant
employees of Travelers, its Affiliates and the relevant Insurer Subsidiaries
reasonably available to Citigroup and its representatives for consultation with
respect to each Quarterly Report; provided, however, in no event shall Travelers
disclose documents or information privileged under the attorney client or work
product privileges or a substantially similar privilege under Applicable Law.
Section 4.5 Confidentiality of Reports. Except as otherwise required
by law, by governmental or regulatory authorities, in response to court order,
for dispute resolution purposes in accordance with Section 5.4 herein or upon
the prior written consent of Travelers or as provided in the next sentence, all
non-public information included in all Quarterly Reports provided pursuant to
Section 4.1 hereof, the certifications provided pursuant to Section 4.3 hereof
and non-public information shared as part of the consultations contemplated by
Section 4.4 hereof (i) shall be kept confidential by Citigroup and Citigroup's
directors, officers, employees, agents and representatives, (ii) shall not be
disclosed to any other Person, and (iii) shall only be used
13
for the purposes provided herein. Notwithstanding the foregoing, non-public
information included in a Quarterly Report may be disclosed to outside auditors
of Citigroup; provided, however, that, prior to disclosure to any such auditors,
Citigroup shall obtain a written agreement in which the entity that will receive
such information agrees that all such non-public information shall be kept
confidential by such entity and its directors, officers, employees, agents and
representatives and shall not be disclosed to any other person or entity (except
as otherwise required by law, by governmental or regulatory authorities, in
response to court order, for dispute resolution purposes in accordance with
Section 5.4 herein, or upon the prior written consent of Travelers).
ARTICLE V
REMITTANCES
Section 5.1 Payments. On or before the 60th calendar day after
Citigroup's receipt of the Quarterly Report or a Supplementary Report, the
current balance, if any, shown to be due by Citigroup will be due and payable by
Citigroup. The current balance of Reimbursable Net Incurrals, if any, shown to
be due from Travelers to Citigroup shall be due and payable 60 calendar days
after the date of the Quarterly Report or a Supplementary Report showing such a
balance to be due.
Section 5.2 Interest Payments. If and to the extent that Citigroup
or Travelers, as the case may be, does not make any payment when due hereunder,
the non-paying party shall pay to the other party interest on any such unpaid
amount, from the date on which such amount is due until such amount is paid in
full, at a rate equal to the Overdue Rate, in addition to all other remedies, at
law or in equity, available to Travelers or Citigroup, as the case may be, by
reason of such non-payment.
14
Section 5.3 Reimbursable Net Incurrals. Any portion of Net Incurrals
previously paid to Travelers pursuant to this Indemnification Agreement shall be
returned to Citigroup in the manner set forth in this Article V if the payment
was inappropriately made due to an error in the calculation or application of
the Reserving Methodologies or the preparation of the Quarterly Report. Portions
of Net Incurrals so reimbursed to Citigroup shall be known as "Reimbursable Net
Incurrals".
Section 5.4 Disputes. (a) If within 60 days of its receipt of a
Quarterly Report or Supplementary Report Citigroup notifies Travelers in writing
(a "Dispute Notice") that it disputes the amount of Net Incurrals shown on such
Quarterly Report or Supplementary Report, the parties will, to the extent
practicable, confer in good faith to resolve such dispute. Notwithstanding the
issuance of a Dispute Notice by Citigroup, all payments are due as provided in
Section 5.1. The Dispute Notice shall identify the Asbestos-Related Liabilities
so disputed (the "Disputed Asbestos-Related Liabilities"), including, but not
limited to, whether the Disputed Asbestos-Related Liabilities are based upon
reserves for IBNR claims or reserves for reported claims. If Citigroup has
delivered a Dispute Notice, and Travelers and Citigroup are unable to resolve
the disagreement within fifteen (15) calendar days after delivery of the Dispute
Notice, then the disagreement shall be resolved by arbitration in accordance
with Article IX hereof. Citigroup shall submit the Dispute Notice, if any,
within 60 days of its receipt of the Quarterly Report or Supplementary Report
which gives rise to the dispute; provided, however, the failure by Citigroup to
provide a Dispute Notice in a timely manner shall not preclude Citigroup's
rights under this Section 5.4 to dispute any amount shown on any Quarterly
Notice or Supplementary Report at any time prior to termination of this
15
Indemnification Agreement pursuant to Article VII. Dispute Notices relating to
errors in the calculation or application of the Reserving Methodologies which
may give rise to Reimbursable Net Incurrals shall be submitted within 60 days of
Citigroup's receipt of the Quarterly Report or Supplementary Report showing such
error. Citigroup understands and acknowledges that in the event of any dispute
or arbitration hereunder, Citigroup will not be given access to or require any
documents belonging to Travelers, its Affiliates or the Insurer Subsidiaries
which are subject to the attorney client or work product privileges or a
substantially similar privilege under Applicable Law.
(b) In the event there are Disputed Asbestos-Related
Liabilities, the arbitral tribunal established pursuant to the provisions of
Article IX hereof shall determine whether Travelers calculated the amount of Net
Incurrals shown on such Quarterly Report or Supplementary Report in accordance
with this Indemnification Agreement. If the arbitral tribunal agrees, in whole
or in part, with an objection of Citigroup under this Section 5.4, the amounts
determined by the arbitral tribunal to have not been calculated by Travelers in
accordance with this Indemnification Agreement shall be refunded by Travelers
together with interest on such previously paid amounts from the date on which
they were previously paid in full by Citigroup until they are repaid in full to
Citigroup at a rate equal to the Overdue Rate. If the arbitral tribunal
disagrees, in whole or in part, with an objection of Citigroup under this
Section 5.4, Travelers shall retain the amounts previously paid to the extent
determined by the arbitral tribunal to have been calculated by Travelers in
accordance with this Indemnification Agreement and, if Citigroup shall be
required to pay any additional amounts determined by the arbitral tribunal to
have been calculated by Travelers in accordance with this
16
Indemnification Agreement, Citigroup shall pay such amounts, together with
interest on such amounts from the date on which such amounts were due hereunder
(being fifteen (15) calendar days after delivery of the Quarterly Report(s) or
Supplementary Reports containing the disputed amounts) until such amounts are
paid to Travelers in full at a rate equal to the Overdue Rate.
(c) Upon a change in facts or circumstances with respect to
the Net Incurrals that were the subject of a Quarterly Report, Dispute Notice,
and prior Arbitration pursuant to Article IX hereof, Travelers may issue a
supplementary report citing the additional and/or changed facts and
circumstances that support said Net Incurrals ("Supplementary Report"). If
Citigroup disputes the Supplementary Report, the dispute provisions of Sections
5.4(a) and (b), above, and Article IX shall then apply to the Supplementary
Report.
ARTICLE VI
ENFORCEMENT OF RIGHTS
Section 6.1 Enforcement of Rights. Travelers shall cause each of the
Affiliates and Insurer Subsidiaries to enforce, consistent with its ordinary
course of business practices, its rights to collect (i) any and all Ceded
Reinsurance in respect of any of the Asbestos-Related Liabilities; (ii) any and
all salvage, subrogation and other recoveries in respect of any of the
Asbestos-Related Liabilities; (iii) any and all profit-sharing, experience
rating, retro-sharing or other similar premium adjustments recoverable in
respect of any of the Asbestos-Related Liabilities; and (iv) any payments due to
Travelers, its Affiliates and/or the Insurer Subsidiaries under the Third Party
Indemnification Agreements, hold harmless or similar agreements in respect of
the Asbestos-Related Liabilities. Citigroup acknowledges that all final
determinations with
17
respect to the exercise of such rights shall be made by Travelers, its
Affiliates and/or the Insurer Subsidiaries, as applicable, in its sole
discretion.
ARTICLE VII
COMMENCEMENT AND TERMINATION
Section 7.1 Commencement and Termination. (a) This Indemnification
Agreement will take effect on the Effective Date.
(b) This Indemnification Agreement will remain in full force
and effect for a period ending on the earliest of (i) the natural expiry of all
of Travelers', its Affiliates' and the Insurer Subsidiaries' liabilities with
respect to Asbestos-Related Liabilities; (ii) two years after such date as of
which Citigroup has made aggregate payments under this Indemnification Agreement
equal to the Maximum Payment Amount, provided that the parties agree there are
no amounts in respect of Reimbursable Net Incurrals that are likely to become
due; and (iii) such other date as may be mutually agreed by Citigroup and
Travelers.
(c) In the event of the termination of this Indemnification
Agreement pursuant to the preceding paragraph, this Indemnification Agreement
shall have no further effect, and there shall be no liability hereunder on the
part of any party hereto, except that no termination of this Indemnification
Agreement in accordance with the preceding paragraph shall affect the parties'
obligations to resolve, pursuant to Section 5.4, any dispute commenced pursuant
to a Dispute Notice under Section 5.4 delivered prior to the termination of this
Indemnification Agreement, or any arbitration procedure pursuant to Article IX
commenced prior to the termination of this Indemnification Agreement.
Additionally, no termination of this Indemnification Agreement in
18
accordance with the preceding paragraph shall affect the parties' obligations
pursuant to the confidentiality provisions of Section 8.1.
ARTICLE VIII
CONFIDENTIALITY
Section 8.1 Confidentiality. (a) All non-public information,
documents and records made available to one party by the other under this
Indemnification Agreement (the "Confidential Material") shall be solely for the
purpose of allowing each party hereto to assert its rights and perform its
obligations under this Indemnification Agreement and not for the purpose of
instituting, changing or otherwise affecting its own business or competitive
practices that are unrelated thereto. Under no circumstances shall such
disclosure be deemed a waiver of any rights or privileges in any such
Confidential Material to which a party may be entitled including, without
limitation, the attorney client privilege and work product protection or a
substantially similar privilege under Applicable Law. The Confidential Material
shall not include (with respect to either party) information, documents and
records of such party or any portion thereof which was or becomes generally
available to the other party on a non-confidential basis; provided, that the
source of such information, documents or records was not bound by a
confidentiality agreement or other obligation of confidentiality.
(b) Each party hereto agrees that it will maintain the
Confidential Material received from the other party in confidence; provided,
that each party may disclose the Confidential Material or portions thereof to
its directors, officers, representatives and employees and the directors,
officers and employees of its Affiliates.
(c) If either party or any individual or entity obtaining
Confidential Material in accordance with this Indemnification Agreement
(collectively,
19
"recipient") is legally requested or required under an order or subpoena issued
by a court, administrative agency or arbitration panel to disclose any
Confidential Material, the recipient shall provide the other party hereto with
prompt written notice of the request, requirement, subpoena or order to permit
such party (if it so elects) to seek an appropriate protective order preventing
or limiting disclosure. If such other party seeks such an order or takes other
steps to avoid or limit disclosure, the recipient shall cooperate with such
other party at such other party's expense. If, in the absence of such protective
order, the recipient is compelled to disclose Confidential Material, the
recipient may disclose such Confidential Material without liability hereunder.
(d) Each party hereto agrees that money damages would not be
sufficient remedy for any breach of these confidentiality provisions by the
other party, its Affiliates or their respective directors, officers,
representatives and employees, and that in addition to all other remedies, each
party shall be entitled to specific performance and injunctive or other
equitable relief as a remedy for any such breach.
ARTICLE IX
ARBITRATION
Section 9.1 Arbitration. (a) Any dispute, controversy or claim
between Citigroup and Travelers arising out of or relating to this
Indemnification Agreement, or the breach, termination or validity thereof
("Dispute"), shall be finally settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA")
then in effect, as may be modified by the arbitral tribunal (the "Rules"). The
arbitration shall be held at a mutually agreeable time and place.
20
(b) There shall be three disinterested arbitrators, of whom
Citigroup shall appoint one and Travelers shall appoint one within 30 days of
receipt by the respondent of the demand for arbitration. The two arbitrators so
appointed shall be retired or active executives within the insurance or
reinsurance industry or Fellows of the Casualty Actuarial Society and they shall
select the neutral chair of the arbitral tribunal within 30 days of the
appointment of the second arbitrator. The neutral chair of the tribunal selected
in accordance with the previous sentence shall be a practicing attorney with no
less than ten years of experience and an experienced arbitrator, if possible
with experience relating to insurance and reinsurance disputes, or a retired
judge. If either party fails or refuses to appoint its arbitrator within the
time limit provided herein, the other party may appoint an arbitrator for such
party. If the two arbitrators fail to select the neutral chair of the arbitral
tribunal as provided herein, the neutral chair shall be selected in accordance
with the XXXXX-U.S. Umpire Appointment Procedures (Umpire List option).
(c) In the absence of agreement by the parties as to
pre-hearing discovery, the arbitral tribunal shall order such discovery as it
determines to be consistent with the needs of the parties taking in to account
the expedited nature of arbitration. The hearing shall be held, if possible, no
later than one-hundred fifty (150) days after the appointment of the arbitral
tribunal. The arbitral tribunal shall be required to follow the law of the State
of New York, except that it shall apply the statutory reserving requirements of
the domiciliary states of the Insurer Subsidiaries.
(d) By agreeing to arbitration, the parties do not intend to
deprive any court of its jurisdiction to issue a pre-arbitral injunction,
pre-arbitral
21
attachment, or other order in aid of arbitration proceedings and the enforcement
of any award. Without prejudice to such provisional remedies as may be available
under the jurisdiction of a court, the arbitral tribunal shall have full
authority to grant provisional remedies and to direct the parties to request
that any court modify or vacate any temporary or preliminary relief issued by
such court, and to award damages for the failure of any party to respect the
arbitral tribunal's orders to that effect. Any arbitration proceedings, decision
or award rendered hereunder and the validity, effect and interpretation of this
arbitration agreement shall be governed by the Federal Arbitration Act, 9 U.S.C.
Section 1 et seq. The arbitral tribunal is not empowered to render declaratory
awards, or to award damages in excess of compensatory damages, and each party
hereby irrevocably waives any right to recover punitive, exemplary or similar
damages with respect to any Dispute. Each party shall pay the fees and expenses
of its own arbitrator and shall equally share the fees and expenses of the
neutral chair, and the parties shall otherwise bear their own fees and expenses
in the arbitration. The award, which shall be a reasoned award stating the
findings of fact and conclusions of law on which it is based, shall be final and
binding upon the parties only as to the facts and circumstances presented by the
Quarterly Report or Supplementary Report at issue and shall be the sole and
exclusive remedy between the parties regarding any claims, counterclaims, issues
or accounting presented to the arbitral tribunal. Judgment upon any award may be
entered in any court having jurisdiction.
ARTICLE X
THIRD PARTY BENEFICIARIES; ASSIGNMENTS AND SURVIVAL
Section 10.1 Third Party Beneficiaries. This Indemnification
Agreement is an agreement solely among Citigroup and Travelers, and the specific
performance of
22
the obligations of each party under this Indemnification Agreement shall be
rendered solely to the other party. Nothing in this Indemnification Agreement,
express or implied, is intended to or shall confer upon any Person, including
but not limited to, the Insurer Subsidiaries, other than the parties hereto any
rights, benefits or remedies of any nature whatsoever under or by reason of this
Indemnification Agreement.
Section 10.2 Assignments and Delegations. This Indemnification
Agreement may not be assigned or delegated, in whole or in part, by either party
without the prior written consent of the other party. Subject to the foregoing,
this Indemnification Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
Section 10.3 Survival. Notwithstanding anything herein to the
contrary, the provisions of this Indemnification Agreement shall survive any
direct or indirect sale or exchange of capital stock, merger, consolidation,
sale or transfer of assets, business combination or other change in control of,
or change in the form of business conducted by, Travelers or Citigroup.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Governing Law. This Indemnification Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to such jurisdiction's principles of conflicts of laws that would
compel the application of the laws of another jurisdiction.
Section 11.2 Notices. Any notice or other communication hereunder
shall be in writing and delivered in person or by courier, telegraphed, telexed
or by
23
facsimile transmission or mailed by certified mail, postage prepaid, return
receipt requested, as follows:
If to Travelers:
Travelers Property Casualty Corp.
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Travelers Property Casualty Corp.
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Citigroup:
Citigroup Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Citigroup Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Or to such other place as Citigroup or Travelers may designate as to Citigroup
or Travelers, respectively, by written notice to the other.
24
Section 11.3 Entire Agreement; Amendments. This Indemnification
Agreement, including any schedules or exhibits annexed hereto, constitutes the
entire agreement and understanding between the parties pertaining to the subject
matter hereof and supersedes all prior agreements, understandings, negotiations
and discussions, whether oral or written, between the parties hereto. There are
no restrictions, promises, representations, warranties, covenants or
undertakings, other than those expressly set forth or referred to herein.
Subject to Applicable Law, this Indemnification Agreement may be amended,
modified or supplemented only by written agreement executed by the parties
hereto.
Section 11.4 Counterparts. This Indemnification Agreement may be
executed in counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same agreement.
Section 11.5 Currency. Whenever the word "dollars" or the sign $
appear in this Indemnification Agreement, they shall be construed to mean United
States Dollars.
Section 11.6 Headings. The headings of the Articles and the sections
herein are inserted for convenience of reference only, and are not intended to
be a party of or to affect the meaning or interpretation of this Indemnification
Agreement.
Section 11.7 No Waiver. No consent or waiver, express or implied, by
any party to or of any breach or default by any other party in the performance
by such other party of its obligations hereunder shall be deemed or construed to
be a consent or waiver to or of any other breach or default in the performance
of obligations hereunder
25
by such other party hereunder. Failure on the part of any party to complain of
any act or failure to act of any other party or to declare any other party in
default, irrespective of how long such failure continues, shall not constitute a
waiver by such first party of any of its rights hereunder.
26
IN WITNESS WHEREOF, the parties hereto have caused this
Indemnification Agreement to be executed on their behalf by their respective
officers thereunto duly authorized as of the date first written above.
CITIGROUP INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Controller
TRAVELERS PROPERTY CASUALTY CORP.
By: /s/ Xxx X. Xxxxx
------------------------------------
Name: Xxx X. Xxxxx
Title: Chief Financial Officer
