EXHIBIT 10.34
TAX AND EXPENSE SHARING AGREEMENT
This Agreement (this "Agreement") is made and entered into as of this
12th day of March 2004, by and between SeaBright Insurance Holdings, Inc., a
Delaware corporation ("Holdings"), and SeaBright Insurance Company, an Illinois
insurance company ("Insurance Co."), and PointSure Insurance Services, Inc., a
Washington corporation (each, a "Subsidiary," and collectively, the
"Subsidiaries").
WHEREAS, Holdings is the common parent of, and each Subsidiary is a
member of, an affiliated group of corporations within the meaning of Section
1504(a) of the Internal Revenue Code of 1986, as amended (the "Code"), which
files a consolidated federal income tax return and may be eligible to file a
combined, consolidated or unitary group tax return under applicable state or
local tax law (each a "Consolidated Return") (such group as constituted from
time to time is hereinafter referred to as the "Holdings Group");
WHEREAS, Holdings and the Subsidiaries agree that it would be mutually
beneficial to provide for payments by the Subsidiaries to or at the direction of
Holdings (or by or at the direction of Holdings to the Subsidiaries) in respect
of federal, state and local corporate income and franchise taxes payable (or tax
refunds receivable) by the Holdings Group;
WHEREAS, Holdings does not own any assets other than the capital stock
of its subsidiaries; and
WHEREAS, the Subsidiaries will, from time to time, pay all tax
preparation fees in connection with this Agreement and all accounting fees and
expenses incurred in connection with the annual audit of the Holdings'
consolidated financial statements incurred by Holdings on behalf of Holdings and
each Subsidiary.
NOW, THEREFORE, in consideration of their covenants, Holdings and the
Subsidiaries hereby agree as follows:
1. Consolidated Returns and Payment of Consolidated Tax Liability
If Holdings files Consolidated Returns, so long as any Subsidiary is a
member of the Holdings Group, it shall join in the filing by Holdings of each
such Consolidated Return, and shall file such consents, elections and other
documents as may be necessary or appropriate to carry out the purposes of this
Section 1. Holdings shall be responsible for paying or arranging for the payment
of all federal, state and local income and franchise taxes for the Holdings
Group to the Internal Revenue Service ("IRS") or the applicable state or local
taxing authority, and shall be entitled, subject to the provisions of Section
3(c) below, to receive all refunds of such taxes. Holdings is hereby irrevocably
constituted the exclusive agent and attorney-in-fact of the Holdings Group to
file such Consolidated Returns, pay such taxes, and take any action reasonably
necessary or appropriate in connection with the determination of the ultimate
liability of the Holdings Group for such taxes, including, without limiting the
generality of the foregoing, contesting the assessment of any deficiency,
entering into any closing agreement, compromise or
settlement, filing any amended return, and prosecuting any action for a refund,
on behalf of the Holdings Group.
2. Payments by Subsidiaries to Holdings in Respect of Subsidiaries' Tax
Liability
During each of Holdings' taxable years for which it files a
Consolidated Return in which any Subsidiary is a member (a "Consolidated Return
Year"), each Subsidiary will deposit with or at the direction of Holdings, no
more than ten (10) days prior to or concurrent with the due date of each
quarterly estimated tax payment of Holdings to the IRS (and any corresponding
payment due to an applicable state or local tax authority), an amount
established by the financial officers of Holdings and each such Subsidiary as
appropriately reflecting the estimated tax (if any) which would be payable by
each such Subsidiary on such date if it filed a separate tax return for such
year. On or prior to the 30th day following the filing of any Holdings Group
Consolidated Return for a Consolidated Return Year, with respect to each
Subsidiary included in such return, payment shall be made by such Subsidiary to
or at the direction of Holdings or by or at the direction of Holdings to such
Subsidiary, as appropriate, to reflect the difference between the amounts paid
by such Subsidiary to Holdings in respect of the estimated taxes for such
Consolidated Return Year and the amount of tax which such Subsidiary would have
paid for such Consolidated Return Year if it had filed a separate tax return for
such year.
3. Audit Adjustments and Other Matters
(a) In the event a "determination" within the meaning of section 1313
of the Code (or any corresponding provision of state or local law) is reached
which results in any adjustment to the tax returns of the Holdings Group or of
any Subsidiary, the liabilities of Holdings and each of the Subsidiaries under
Sections 1 and 2 above, including any applicable penalties and interest thereon,
shall be redetermined to give effect to such adjustment. Payments made by
Holdings and any of the Subsidiaries to reflect any such finally determined
liabilities, including interest payable thereon measured from the date 120 days
after the end of the year to which such adjustment relates, shall be made within
45 days after the determination causing such adjustment is reached.
(b) If and to the extent that Holdings receives a tax refund for a
Consolidated Return Year which is properly attributable to the tax attributes of
a Subsidiary reflected in the Consolidated Return for such Consolidated Return
Year, Holdings shall pay to such Subsidiary the amount of such tax refund within
45 days from the date that the tax return was filed.
(c) All payments under this Agreement shall be in the form of cash or
securities eligible for investment under the Illinois Insurance Code. If any
payment required by this Agreement is not timely paid, interest shall accrue on
the unpaid amount at the rate provided with respect to deficiencies under the
Code or under any successor act.
(d) The financial officers of each party affected by a particular
calculation required under this Agreement will review such calculation and agree
thereto. The final decision of such financial officers will control for
financial reporting and for purposes of settlement between Holdings and any
Subsidiary, unless otherwise determined by the respective Boards of Directors of
Holdings and such Subsidiary.
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(e) Holdings will have access to such books, records and papers of each
of the Subsidiaries, and each of the Subsidiaries will have access to such
books, records and papers of Holdings, as bear upon the calculations and
determinations hereunder and each of the parties hereto has the right to
participate in and be kept fully informed about IRS examinations, similar state
or local examinations, and other administrative and judicial proceedings which
could bear upon the amount of payments hereunder.
(f) For purposes of this Agreement, the federal income tax liability
which each member of the Holdings Group would incur if it were filing a separate
return shall be determined in accordance with Treas. Reg. ss.1.1552-1(a)(1) as
adjusted by the application of the "wait-and-see method" prescribed under Treas.
Reg. ss.1.1502-33(d)(2). To the extent that any applicable state or local tax
liability is determined under principles similar to the foregoing, this
paragraph shall also apply for purposes of such state or local tax law.
4. Term
(a) This Agreement shall be effective as of September 30, 2003 and
shall continue in effect, without amendment, until terminated or canceled as
hereinafter provided. If terminated or canceled, the Agreement shall
nevertheless continue to apply to all Consolidated Return Years and that part of
any Consolidated Return Year ending prior to the date of cancellation or
termination, including adjustments pursuant to Section 3 with respect to such
years.
(b) This Agreement may be canceled by Holdings as of the first day of
any month with respect to any Subsidiary by giving such Subsidiary not less than
30 days' prior written notice of such cancellation.
(c) This Agreement shall not terminate if any Subsidiary ceases to be
included with Holdings in the same combined, consolidated or unitary federal,
state or local income tax return or ceases to be a member of the Holdings Group;
provided, however, that this Agreement shall cease to be effective as between
such Subsidiary and Holdings for any taxable period of such Subsidiary beginning
at or after such time.
5. Expenses.
The Subsidiaries shall pay all tax preparation fees in connection with
this Agreement and all accounting fees and expenses incurred in connection with
the annual audit of the Holdings' consolidated financial statements. These
expenses shall be allocated among the Subsidiaries based on the percentage that
each Subsidiary's total income for any fiscal year bears to the total income for
all Subsidiaries for such fiscal year.
6. General
(a) This Agreement supersedes all prior agreements between Holdings and
any one or more of the Subsidiaries pertaining to the subject matter of this
Agreement.
(b) Holdings and each Subsidiary agree that if any Subsidiary merges
into, is consolidated with, or transfers substantially all its assets to another
corporation, such surviving
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corporation shall succeed to the rights and obligations of such Subsidiary
herein, and all covenants and agreements in this Agreement shall be binding
upon, and shall inure to the benefit of, such surviving corporation (including
the proviso to Section 4(c)).
(c) The parties intend that this Agreement shall apply to all
corporations which are or which may become members of the Holdings Group.
Holdings and each Subsidiary agree that they will make every reasonable effort
to ensure that any corporation that becomes a member of the Holdings Group
agrees to be bound by the terms of this Agreement by executing and delivering to
Holdings a counterpart of this Agreement.
(d) Except as provided in (b) above, this Agreement may not be assigned
by any party without the other parties' prior written consent.
(e) The validity, interpretation and performance of this Agreement will
be controlled by and construed under the laws of the State of Delaware without
regard to the conflict of law principles of the State of Delaware.
(f) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(g) All notices hereunder shall be in writing and shall be deemed to
have been delivered if sent by registered or certified mail, postage prepaid, as
follows:
If to Holdings:
--------------
SeaBright Insurance Holdings, Inc.
0000 0xx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Chairman
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Subsidiaries:
----------------------
SeaBright Insurance Company
0000 0xx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Chairman
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
PointSure Insurance Services, Inc.
0000 0xx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Chairman
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
* * * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the day and year first above indicated.
SEABRIGHT INSURANCE HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
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Its: President
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SEABRIGHT INSURANCE COMPANY
By: /s/ Xxxxxxx X. Gergasko
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Its: Executive Vice President
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POINTSURE INSURANCE SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Its: President
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