TAX SHARING AGREEMENT
THIS AGREEMENT, executed this 31 day of July, 1996, is entered into by
and between Tridex Corporation, a Connecticut corporation ("Tridex") and
TransAct Technologies, Inc., a Delaware corporation ("TransAct").
RECITALS
WHEREAS, Tridex, TransAct, Magnetec Corporation, a Connecticut corporation
and wholly-owned subsidiary of Tridex ("Magnetec"), and Ithaca Peripherals,
Inc., a Delaware corporation and wholly-owned subsidiary of Tridex (Ithaca"),
have entered into a Plan of Reorganization dated as of June 24, 1996 (the
"Plan") pursuant to which, among other things, (i) TransAct is acquiring from
Tridex all of the outstanding capital stock of Magnetec, (ii) TransAct is
issuing [5,400,000] shares of its common stock to Tridex and (iii) TransAct is
issuing up to 1,322,500 of common stock pursuant to an underwritten public
offering registered under the Securities Act of 1933, as amended (the
"Securities Act") on a Registration Statement on Form S-1 (the "Offering");
WHEREAS, as contemplated by the Plan, the shares of outstanding common
stock of TransAct held by Tridex are to be distributed on a pro rata basis to
the record holders of shares of Tridex common stock (the "Distribution") upon
the satisfaction of certain conditions;
WHEREAS, Tridex and its subsidiaries, including Magnetec and Ithaca, have
heretofore: (1) joined in filing consolidated federal income tax returns under
the Internal Revenue Code of 1986, as amended (the "Code"), and the applicable
Treasury Regulations promulgated thereunder by the Treasury Department (the
"Regulations"); (2) joined in filing certain consolidated, combined, and unitary
state income tax returns; and (3) in some cases filed income tax returns on a
separate company basis.
WHEREAS, during the period prior to the consummation of the Distribution,
TransAct is expected to remain within the affiliated group (within the meaning
of Section 1504(a) of the Code) of corporations (the "Tridex Group") of which
Tridex is the common parent;
WHEREAS, the parties hereto desire to allocate their respective federal,
state, local and foreign income tax (or similar tax) liabilities, assessed in
connection with the filing of returns, including but not limited to
consolidated, combined, unitary, or separate returns, among themselves for all
fiscal years thereafter during which TransAct remains a member of the Tridex
Group;
WHEREAS, the parties hereto desire to provide for the compensation and
reimbursement of each other for Tax Deficiencies (as hereinafter defined) or Tax
Refunds (as hereinafter defined) as a result of audits by or applications to the
Internal Revenue Service (the "Service") and other taxing authorities or by
judicial determination, if any, involving consolidated federal, consolidated,
combined or unitary state and local income tax returns and similar aggregate
reporting for certain foreign jurisdictions;
WHEREAS, the parties hereto desire to provide and fix the responsibilities
for: (1) the preparation and filing of tax returns along with the payments of
taxes shown to be due and payable therein (as well as estimated or advance
payments required prior to the filing of said returns) for all periods prior to
and
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following the Effective Date (as hereinafter defined); (2) the retention and
maintenance of all relevant records necessary to prepare and file appropriate
tax returns, as well as the provision for appropriate access to those records
for all parties to this Agreement; (3) the conduct of audits, examinations, and
proceedings by appropriate governmental authorities which could result in a
redetermination of tax liabilities (for all periods prior to or following the
Effective Date) of any party to this Agreement; and (4) the cooperation of all
parties with one another in order to fulfill their duties and responsibilities
under this Agreement and under applicable laws.
NOW, THEREFORE, in consideration of the mutual promises herein contained
and other good and valuable considerations, the receipt of which is hereby
acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS.
As used herein, the following terms shall have the following meanings:
(a) "Affiliated Group" shall have the meaning attributed to that term
in Section 1504 of the Code, determined without regard to Section 1504(b) of the
Code.
(b) "Code" shall have the meaning attributed to that term in the
recitals above.
(c) "Common Parent" shall have the meaning attributed to that term in
the Consolidated Return Regulations (Treas. Reg. Section 1.1502-1 et seq.)
promulgated pursuant to Section 1502 of the Code.
(d) "Consolidated Return Regulations" shall have the meaning
attributed to that term in Section 4 hereof.
(e) "Effective Date" shall mean the date on which the Registration
Statement relating to the Offering is declared effective under the Securities
Act.
(f) "IRS" or "Service" shall have the meaning attributed to that term
in the recitals above.
(g) "Joint Contest" shall mean a Tax Contest seeking a redetermination
of Taxes involving one of more Members (determined by reference to the time of
such contest rather than the period for which such return was filed) of the
Tridex Group and one or more Members of the TransAct Group, whether such
corporations joined in the filing of returns on a consolidated, combined, or
unitary basis (including similar aggregate reporting for certain foreign
jurisdictions).
(h) "Member" shall have the meaning attributed to that term in Section
1.1502-1(b) of the Regulations, but without regard to whether a corporation
qualifies to be a Member of an Affiliated Group under Section 1504(b) of the
Code.
(i) "Minimum Tax Credit" shall have the meaning attributed to that
term in Section 5 hereof.
(j) "Offering" shall have the meaning attributed to that term in the
recitals above.
(k) "Plan" shall have the meaning attributed to that term in the
recitals above.
(l) "Regulations" shall have the meaning attributed to that term in
the recitals above.
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(m) "Separate Contest" shall mean a Tax Contest which involves: (i)
only Members (or their direct and indirect subsidiaries) of the Tridex Group or
(ii) only Members (or their direct and indirect subsidiaries) of the TransAct
Group.
(n) "Separation Date" shall mean the date, if any that TransAct shall
cease to be a member of the Tridex Group.
(o) "Tax" or "Taxes" shall mean (i) all federal income taxes and
state, local, and foreign income and franchise taxes (or taxes in lieu thereof)
plus (ii) any penalties, fines or additions to tax with respect thereto, plus
(iii) any interest with respect to the items contained in (i) and (ii).
(p) "Tax Attributes" shall mean any losses, credits and other tax
attributes that may be carried forward or back by any Member of the Tridex Group
or the TransAct Group on a separate return or consolidated basis to a taxable
year other than the taxable year in which such attribute is recognized,
including, but not limited to, net operating losses, alternative minimum tax
credits, targeted jobs tax credits, investment tax credits, foreign tax credits,
research and development credits, and similar credits under state or local law.
(q) "Tax Contest" shall mean an audit, review, examination or the
like, inclusive of litigation, with the purpose or effect of redetermining Taxes
of any corporation or other entity (without regard to whether such matter was
initiated by an appropriate taxing authority or in response to a claim for a
refund).
(r) "Tax Deficiency" or "Tax Deficiencies" shall mean with respect to
previously filed returns an assessment for Taxes as a result of audits by or
applications to the Service and other taxing authorities or judicial
determination.
(s) "Tax Liability" or "Tax Liabilities" shall mean a liability for
Taxes.
(t) "Tax Refund" or "Tax Refunds" shall mean with respect to
previously filed returns, a refund of Taxes as a result of audits by or
application to the Service and other taxing authorities or judicial
determination.
(u) "TransAct" shall have the meaning attributed to that term in the
preamble hereof.
(v) "TransAct Group" shall mean the group of corporations at any given
time after the Separation Date which would be the Affiliated Group of which
TransAct is the Common Parent if TransAct was a "common parent" within the
meaning of the Consolidated Return Regulations, and where relevant, all other
subsidiaries which are owned directly or indirectly by its Members.
(w) "Tridex" shall have the meaning attributed to such term in the
preamble hereof.
(x) "Tridex Group" shall mean the group of corporations at any given
time (either prior to, or subsequent to, the Effective Date) which would be the
Affiliated Group of which Tridex is the Common Parent if Tridex was a "common
parent" within the meaning of the Consolidated Return Regulations, and where
relevant, all other subsidiaries which are owned directly or indirectly by its
Members.
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SECTION 2. CONSOLIDATED RETURN ELECTION; ALLOCATION OF TAX OBLIGATIONS;
POST-SEPARATION DATE ALLOCATIONS AND PAYMENTS; TREATMENT OF TAX
CARRYFORWARDS; AND COMPUTATION OF INCOME TAX PROVISIONS.
(a) Consolidated Return Electionx. In determining Tax Liabilities of
the Tridex Group and its Members for Fiscal 1996 and where relevant any
subsequent fiscal year up to the Separation Date, the computations of the tax
liabilities of the Tridex Group and its Members shall, to the extent permitted
by law, be made in accordance with the methods used in the consolidated returns
for the fiscal years ending prior to Fiscal 1996 which include Tridex and
TransAct.
(b) Allocation of Tax Obligations.
(i) Taxes assessed pursuant to the returns described in the preceding
subsection will be allocated among the Members of the Tridex Group
pursuant to the Tridex Group's historic tax allocation method,
described in Section 1552(a)(2) of the Code and Section 1502-33(d)(3)
of the Regulations (applying a fixed percentage of 100 percent).
(ii) With respect to fiscal 1996 and any subsequent fiscal year or
portion thereof up to the Separation Date for which TransAct remains a
Member of the Tridex Group, TransAct shall pay to Tridex an amount
equal to the federal income taxes for such period which the TransAct
Group would have been liable but for the fact of being a Member of the
Tridex Group.
(iii) With respect to Taxes which are determined on a consolidated,
combined or unitary basis, similar principles as those described in
Section 2(b)(i) and (ii) shall govern the allocation of such Tax
Liabilities among the parties hereto.
(c) Post-Separation Date Allocations and Payments. With respect to any
fiscal year or portion thereof when TransAct is no longer a member of the Tridex
Consolidated Group, beginning on the Separation Date, the allocations (to be
made by Tridex and TransAct for any fiscal year) will be made not later than 90
days following the filing of the Federal consolidated income tax return of the
Tridex Group for each such period. Any payments required as a result of the
allocations for any portion of any fiscal year in which the Separation Date
occurs will be made by TransAct or Tridex as the case may be, in federal or
immediately available funds to such bank account as shall be designated by the
recipient. Subject to the provisions of Section 10(c) hereof, such payment shall
be made not later than 95 days after the aforementioned returns are filed.
(d) Treatment of Tax Carryforwards. Magnetec currently has available
for its use certain net operating loss and tax credit carryforwards. If for any
fiscal year beginning after the Effective Date, TransAct uses any net operating
loss or tax credit carryforward of Magnetec's available for use as of the
Effective Date, TransAct will pay to Tridex an amount equal to the net benefit
of the carryforward used in the taxable year. Such payment will be made not
later than 90 days following the filing of the Federal consolidated income tax
return of the Tridex Group for each such period.
(e) Computation of Income Tax Provisions. For financial reporting
purposes, the TransAct Group will compute its income tax accounts as if a
separate return had been filed, using those elements of income and expense as
reported in the consolidated or combined financial statements in accordance with
U.S. Generally Accepted Accounting Principles.
SECTION 3. SEPARATE COMPANY LIABILITIES.
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Notwithstanding the provisions of Section 2 hereof, for all fiscal years
prior to the Separation Date, Taxes imposed (including refunds owed) upon Tridex
or a Member of the Tridex Group or any of their direct and indirect subsidiaries
and which are determined or assessed on a separate company basis will be the
separate liability (or asset in the case of a refund) of Tridex or such Member
or such subsidiary and not subject to allocation or sharing among other Members
of the Tridex Group.
SECTION 4. ALLOCATION OF TAX ATTRIBUTES.
Except as otherwise provided in Section 5 hereof, all Tax Attributes of the
Tridex Group (other than foreign tax credits) will be allocated among Tridex,
TransAct and their respective subsidiaries, in accordance with the Regulations
promulgated pursuant to Section 1502 of the Code or analogous provisions of
state, local or foreign law (the "Consolidated Return Regulations"). All foreign
tax credits generated by Tridex's investment in subsidiaries other than members
of the TransAct Group shall be allocated to Tridex.
SECTION 5. MINIMUM TAX CREDIT.
(a) Allocation of Credit. The credit against income tax provided by
Section 53 of the Code, as well as analogous credits provided by state, local,
or foreign law, for payment of alternative minimum tax in periods through and
including those ending on the Separation Date (the "Minimum Tax Credit"), shall
be allocated as follows:
(i) For each year or portion of the year in which the Separation Date
occurs, the Minimum Tax Credit for each such year shall be allocated
to TransAct in the amount of such credit multiplied by a fraction
whose numerator is the sum of the alternative minimum taxable income
or loss for such year for all Members of the TransAct Group and whose
denominator is the sum of the alternative minimum taxable income or
loss for such year for all Members of the TransAct and all Members of
the Tridex Group. The remaining portion of such credits shall be
allocated to Tridex.
(ii) In no event shall either Tridex or TransAct be allocated for any
period an amount of Minimum Tax Credit in excess of that available to
the Tridex Group for such period.
(b) Future Regulations. Notwithstanding Section 2(c) hereof, in the
event that regulations are promulgated which do not permit the Minimum Tax
Credit to be allocated among the members of the Tridex Group in the manner set
forth herein, Tridex or TransAct, as the case may be, will be obligated to make
a payment to the other in an amount equal to the excess of the Minimum Tax
Credit that is allocated to it and its Members by such regulations over that
which would be allocated to it pursuant to Subsection 5(a)(i) above.
SECTION 6. CARRYBACKS OF TAX ATTRIBUTES.
(a) TransAct Carrybacks. If for any taxable year beginning on or after
the Separation Date, TransAct or any Member of the TransAct Group recognizes a
Tax Attribute which TransAct or such Member of the TransAct Group, under the
applicable provisions of the Code and Regulations promulgated under Section 1502
thereof, is permitted or required to carry back to a prior taxable year of the
Tridex Group or the prior taxable year of a Member of the Tridex Group (either
on a consolidated, combined, unitary or separate return basis), Tridex (or a
Member of the Tridex Group) shall, at TransAct's cost and expense, file
appropriate
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refund claims within a reasonable period after being requested by TransAct.
Tridex (or the Member of the Tridex Group receiving such refund) shall promptly
remit to TransAct any refunds it receives with respect to any Tax Attribute so
carried back.
(b) Tridex Carrybacks. If for any taxable year Tridex or any Member of
the Tridex Group recognizes a Tax Attribute which Tridex or such Member of the
Tridex Group, under the applicable provision of the Code and Consolidated Return
Regulations, carries back to one of its prior taxable years, Tridex or such
Member of the Tridex Group may file appropriate refund claims and shall be
entitled to any refund resulting from such claims.
SECTION 7. CONDUCT OF TAX CONTESTS.
(a) Joint Contests.
(i) Each party shall have the right and obligation to pursue and
defend against any Joint Contest. TransAct shall conduct Joint
Contests, without prejudice to any right or obligation of Tridex
relating to such Joint Contest. Tridex, as the Common Parent of the
Tridex Group or otherwise, agrees to take all such actions and to
cause its subsidiaries to take all such actions as may be necessary to
permit TransAct to conduct such Joint Contests. Each party shall
cooperate fully with the other during the course of a Joint Contest as
provided in Section 7(c) herein, and shall bear its own costs in so
doing except as otherwise provided in clause (iv) or clause (v) of
this Section 7(a).
(ii) Each party hereto shall have the right to extend the statute of
limitations on assessments with respect to any Taxes of such party
without regard to whether the extension leads to the initiation or the
continuation of a Joint Contest; the other party hereto shall
cooperate fully with the requesting party in accordance with Section
7(c), and shall execute such documentation as may be required to
extend the statute if extension is not otherwise within the legal
power of the requesting party. Similarly, each party hereto shall have
the right to file a claim for a Tax Refund without regard to whether
such claim leads to the initiation or the continuation of a Joint
Contest; the other party hereto shall cooperate fully with the
requesting party in accordance with Section 7(c), and shall execute
such documentation as may be required to claim the Tax Refund if it is
not otherwise within the legal power of the requesting party to file
such claim. Neither the extension of the statute nor the filing of a
claim for Tax Refund in accordance with this paragraph shall entitle
either party to any indemnity from the other, except as provided in
clause (v) of this Section 7(a).
(iii) The party hereto that receives the first information that a
taxing authority is conducting an examination of a Tax return which
included the other party hereto and/or its subsidiaries shall
immediately notify the other that a possible Joint Contest exists and
shall afford such other party the opportunity to participate, at its
own expense, in contesting in administrative and judicial proceedings
all relevant items that affect the Tax Liability or Tax Attributes of
such entities. TransAct and Tridex shall share jointly in any
decisions involved in connection with settlements of Joint Contests to
the extent that items are involved that affect the Taxes or Tax
Attributes of both parties or subsidiaries of both parties. Neither
party may agree to settle such a dispute without the consent of the
other, which shall not be unreasonably withheld. If both parties agree
to pursue or defend a Joint Contest, then each party shall bear its
own costs of contesting the matter. Notwithstanding the preceding
sentence, if the parties agree on the use
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of third party advisors or experts, the costs thereof shall be shared
equally between both parties. If one party acting reasonably and in
good faith declines to pursue or defend a Joint Contest, such
declining party nevertheless shall cooperate fully with the contesting
party in accordance with Section 7(c) herein, and shall bear its own
associated costs and expenses, if any, and shall not be entitled to
any indemnity from the contesting party except as provided in clause
(v) of this Section 7(a); provided however, that the declining party
shall not be required to incur any costs of any third party advisors
or experts to whose engagement it has not agreed. Each party shall be
liable for its share of any redetermined liability for Taxes in
accordance with Section 8 herein.
(iv) Each party hereto shall act reasonably and in good faith in
exercising its right to share jointly in any decisions involved in
connection with Joint Contests affecting its Taxes or Tax Attributes.
A determination of whether a party is acting reasonably and in good
faith shall be made taking into account all relevant facts and
circumstances; provided however, that it shall not be considered to be
acting reasonably and in good faith for purposes of this Section 7(a)
if a party declines a reasonable, good faith request by the other
party to facilitate the extension of the statute of limitations or the
claim of a Tax Refund (as described in clause (ii) of this Section
8(a)).
(v) Neither party shall be required to indemnify or hold harmless the
other for any cost or expense incurred in connection with this
Agreement. Notwithstanding the preceding sentence, one party shall
indemnify the other to the extent of costs (other than Taxes and
interest assessed by any taxing authority with respect thereto)
incurred by the indemnitee that would not have been incurred but for
the failure of the indemnifying party to act reasonably and in good
faith in accordance with this Section 7(a). In addition, one party
shall indemnify and hold harmless the other from any costs or claims
of third party advisors or experts engaged in connection with a Tax
Contest and to whose engagement the indemnitee has not agreed.
(b) Separate Contests. Any Separate Contests with respect to tax
returns filed by any Member of either the Tridex Group or the TransAct Group on
a separate company basis shall be conducted by the entity which filed such tax
return (or the Common Parent of the Affiliated Group of which such entity is a
Member at the time of such contest), and such entity shall have sole and
complete authority to conduct such Tax Contest, including the authority to
negotiate with and enter into settlements with any taxing authority. If at any
point of the proceedings of a Separate Contest, it becomes a Joint Contest, then
the Tax Contest shall thereafter be conducted as a Joint Contest.
(c) Cooperation. Tridex (and the Members of the Tridex Group) and
TransAct (and the Members of the TransAct Group) shall each provide the
assistance reasonably requested by the other with respect to conducting any Tax
Contest, including without limitation providing access to or furnishing books,
records, tax returns and supporting work papers, executing any powers of
attorney or other appropriate documentation required to pursue or defend any Tax
Contest, attending administrative or judicial proceedings in connection with
Joint Contests as necessary, performing necessary computations, and other
functions necessary or helpful to the pursuit or defense of any Tax Contest.
SECTION 8. REDETERMINED TAX LIABILITIES.
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In the event of a redetermination of Taxes as a result of audits by
the Service or other taxing authority and/or judicial determinations, payments
in connection therewith, if any, made or received by or among Tridex, TransAct,
and their respective subsidiaries, shall be governed by the following
principles:
(a) Separate Contests. In the case of matters arising out of Separate
Contests, the redetermined liability will be borne (that is, any increases in
Tax Liability will be paid by, and any decreases in Tax Liability will be
received by) the applicable entity.
(b) Joint Contests. In the case of matters arising out of any Joint
Contest, a Tax Deficiency shall be paid to the relevant taxing authority by, and
a Tax Refund received from the relevant taxing authority shall be paid to,
Tridex and/or its subsidiaries; provided, however, that whether or not a payment
is required to or from a relevant taxing jurisdiction and subject to the
provisions of Section 8(c) hereof, TransAct and/or its subsidiaries shall make
payments to Tridex and/or its subsidiaries, or receive payments from Tridex
and/or its subsidiaries, based on the following principles:
(i) in the case of adjustments which increase the taxable income of
Members of the TransAct Group, TransAct shall make a payment equal to
the amount of the adjustment multiplied by the highest applicable
marginal rate of taxation in effect for the period for which the
adjustment is made; or
(ii) in the case of adjustments which decrease taxable income of
Members of the TransAct Group, Tridex shall make a payment equal to
the amount of the adjustment multiplied by the highest applicable
marginal rate of taxation in effect for the period for which the
adjustment is made;
(iii) in the case of adjustments which decrease current year credits
(exclusive of credits carried back or forward into such year) of
Members of the TransAct Group, TransAct shall make a payment to Tridex
in the amount of such decrease; or
(iv) in the case of adjustments which increase current year credits
(exclusive of credits carried back or forward into such year) of
Members of the TransAct Group, Tridex shall make a payment to TransAct
in the amount of such increase.
Notwithstanding the provisions of Section 8(b)(iii)(iv), no payment will be
required under this Section 8(b) in the case of increases or decreases to the
amount of Alternative Minimum Tax Credit. Changes in the amount of Alternative
Minimum Tax Credit will be controlled by the provisions of Section 8(c) below.
(c) Tax Attribute Reallocations. If there is a redetermination of Tax
Liabilities in connection with either a Joint Contest or a Separate Contest, or
for purposes of this Section 8(c) only, as a result of carrybacks or
carryforwards of Tax Attributes, and as a result thereof there is an adjustment
to Tax Attributes (inclusive of Minimum Tax Credits) allocated among the parties
pursuant to Section 4 and 5 hereof:
(i) Tridex shall, in the case of credits, make a payment to TransAct
equal to the amount of any resulting reduction in items allocated to
Members of the TransAct Group, or in the case of income items
(including but not limited to net operating losses) Tridex shall make
a payment to TransAct equal to the amount of the reduction multiplied
by the highest applicable marginal rate of taxation in effect for the
period in which the adjustment is made; and
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(ii) TransAct shall, in the case of credits, make a payment to Tridex
equal to the amount of any resulting increase in items allocated to
Members of the TransAct Group, or in the case of income items
(including but not limited to net operating losses) TransAct shall
make a payment to Tridex equal to the amount of the increase
multiplied by the highest applicable marginal rate of taxation in
effect for the period in which the adjustment is made.
(d) Certain Reorganization-Related Redeterminations. Any Tax Liability
arising from adjustments to income in connection with the transactions
contemplated by and effected under the Plan shall be borne entirely by Tridex.
(e) Timing of Payments. Any payments required by Section 8(b) or (c)
hereof shall be made within 15 days of such adjustments becoming final.
(f) Interest. Payments, if any pursuant to this Section 8 shall bear
interest determined by applying similar principles as those described herein.
SECTION 9. RETENTION OF RECORDS; ACCESS TO RECORDS; COOPERATION & ASSISTANCE.
(a) Retention of Records.
(i) Duties of TransAct. TransAct shall retain all tax returns, tax
reports, related work papers and all schedule (along with all
documents that pertain to any such tax returns, reports, work papers
or schedules) which relate to a tax period ending on or before the
Separation Date. TransAct shall make such documents available at no
cost to Tridex and/or its subsidiaries at Tridex's request. TransAct
shall not dispose of such documents without the permission of Tridex.
(ii) Duties of Tridex. Tridex shall retain all tax returns, tax
reports, related work papers and all schedules (along with all
documents that pertain to any such tax returns, reports, work papers
or schedules) which relate to any tax period ending on or before the
Separation Date. Tridex shall make such documents available at no cost
to TransAct and/or its subsidiaries at TransAct's request. Tridex
shall not dispose of such documents without the permission of
TransAct.
(b) Access to Records.
(i) Duties of TransAct. TransAct shall permit Tridex or any Members of
the Tridex Group (or their direct and indirect subsidiaries), or their
designated representative, to have access at any reasonable time and
from time to time, after the Separation Date, to all relevant tax
returns and supporting papers therefor in respect of periods ending on
or before the Separation Date, wherever located, and shall furnish,
and request that the independent accountants of TransAct or any of the
members of the TransAct Group furnish, to Tridex and its subsidiaries,
as the case may be, such additional tax and other information and
documents with respect to consolidated federal and state income tax
returns filed in respect of periods ending on or before the Separation
Date, as Tridex or any of its subsidiaries may from time to time
reasonably request.
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(ii) Duties of Tridex. Tridex shall permit TransAct or any Members of
the TransAct Group (or their direct and indirect subsidiaries), or
their designated representative, to have access at any reasonable time
and from time to time, after the Separation Date, to all relevant tax
returns and supporting papers therefor of Tridex and the other members
of the Tridex Group in respect of periods ending on or before the
Separation Date, wherever located, and shall furnish, and request that
the independent accountants of Tridex or any of the members of the
Tridex Group furnish, to TransAct and its subsidiaries, as the case
may be, such additional tax and other information and documents with
respect to consolidated federal and state income tax returns filed in
respect of periods ending on or before the Separation Date, as
TransAct or any of its subsidiaries may from time to time reasonably
request.
(c) Assistance and Cooperation. Tridex (and Members of the Tridex
Group) and TransAct (and Members of the TransAct Group) will provide
each other with such cooperation, assistance and information as either
of them reasonably may request of the other with respect to the filing
of any tax return, amended return, claim for refund or other document
with any taxing authority. With respect to the federal consolidated
tax return or any consolidated, combined, or unitary state or local
tax return (or similar aggregate reporting for foreign tax purposes)
filed by Tridex for tax periods which begin before the Separation Date
and end after the Separation Date, such assistance shall include the
timely submission by TransAct to Tridex of proforma tax returns for
TransAct and each Member of the TransAct Group, prepared on the basis
that each such Member's tax period ended on the Separation Date.
SECTION 10. PREPARATION OF TAX RETURNS; ESTIMATED PAYMENTS.
(a) FY 1996 and all Pre-Separation Date Taxable Years. Tridex shall prepare
and timely file the Tridex Group consolidated returns for fiscal 1996 and all
taxable periods prior to the Separation Date. In connection therewith, TransAct
shall (1) permit Tridex to have access at any reasonable time and from time to
time, after the Separation Date, to all tax returns and supporting papers
therefor of TransAct and its subsidiaries, wherever located; and (2) furnish to
Tridex such additional tax and other information and documents in the possession
of such companies, with respect to consolidated federal and state income tax
returns filed in respect of periods including or ending before the Separation
Date, as Tridex may from time to time reasonably request. TransAct shall, and
shall cause its subsidiaries to, cooperate in connection with the preparation of
the consolidated federal and state income tax returns of the Tridex Group for
fiscal 1996. It shall be the responsibility of Tridex to make any payments
required in connection therewith to the applicable taxing authorities.
(b) Post-Separation Date Taxable Years.
(i) TransAct's Separate Returns. All tax returns of the TransAct Group
which are filed on a consolidated or combined basis for tax periods
beginning after the Separation Date shall be prepared and filed by
TransAct. TransAct shall be solely responsible for the payment of all
Taxes due with respect to such tax returns for such tax periods.
(ii) Tridex's Separate Returns. All tax returns of the Tridex Group
which are filed on a consolidated or combined basis for tax periods
beginning after the Separation Date shall be
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prepared and filed by Tridex. Tridex shall be solely responsible for
the payment of all Taxes due with respect to such tax returns for such
tax periods.
(c) Estimated Payments. All payments (including estimated payments or
payments made in connection with requests for extensions of time to file such
returns) made subsequent to the date hereof with respect to consolidated,
combined, or unitary income tax liabilities of the Tridex Group and its Members
for any and all tax years prior to the Separation Date shall be made by Tridex.
Tridex shall promptly thereafter notify TransAct of the portion, if any, of such
payment which it in good faith believes to be attributable to TransAct's share
of the liability, as determined under the provisions of Section 2 hereof.
TransAct shall, within five (5) business days of the due date for such estimated
payments, pay such amount to Tridex or advise Tridex of the basis for its
disagreement.
SECTION 11. INDEMNIFICATION.
With respect to all consolidated federal and state income tax returns filed
by the Tridex Group:
(a) Self-Assessments. Tridex shall indemnify and hold harmless
TransAct and its subsidiaries, and TransAct shall indemnify and hold
harmless Tridex and its subsidiaries, from and against any liability,
cost, or expense, including, without limitation, any fine, penalty
(including interest on penalties or penalty increments to interest) or
accountants' or attorneys' fees, arising out of fraudulent or
negligently prepared information, workpapers, documents, and other
items used in the preparation of, or presented in, any return, amended
return, or claim for refund filed for the Tridex Group for the tax
years in which a Separation Date occurs, and which information,
workpapers, documents, or other items originated with and/or were
prepared by such indemnifying party.
(b) Redeterminations. Except as otherwise provided in Section 11(a)
hereof:
(i) Tridex shall indemnify and hold harmless TransAct from and against
any liability, cost, or expense incurred or paid by TransAct in excess
of its share thereof as allocated pursuant to Section 8 hereof,
including any amount paid by TransAct in connection with an assessment
by the Service or other taxing authority; and
(ii) TransAct shall indemnify and hold harmless Tridex from and
against any liability, cost, or expense incurred or paid by Tridex in
excess of its share thereof as allocated pursuant to Section 8 hereof,
including any amount paid by Tridex in connection with an assessment
by the Service or other taxing authority.
SECTION 12. RESOLUTION OF DISPUTES.
Any disputes between the parties with respect to this Agreement that
cannot be resolved by the parties shall be resolved by a public accounting firm
or a law firm reasonably satisfactory to Tridex and TransAct, the determination
of which shall be final and binding on both parties. The fees and expenses of
such firm shall be borne equally by Tridex and TransAct.
SECTION 13. SUBSIDIARIES.
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Any reference herein to a subsidiary or subsidiaries includes Members
(and their direct and indirect subsidiaries) of the Tridex Group and the
TransAct Group. To the extent that the provisions of the Agreement pertain to a
subsidiary or subsidiaries of Tridex or TransAct, Tridex and TransAct
respectively agree that it will cause the respective subsidiary or subsidiaries
to carry out the terms of this Agreement.
SECTION 14. SURVIVABILITY/ASSIGNABILITY.
This Agreement and each of its provisions shall be binding upon and
inure to the benefit of the parties and their respective heirs and successors.
Nothing in this Agreement is intended or shall be construed to give any person
or entity other than the parties and their respective heirs or successors any
rights or remedies under or by reason of the Agreement and neither party shall
assign its rights and obligations hereunder without the express written consent
of the other party, which consent each party reserves the right to withhold in
its sole and absolute discretion.
SECTION 15. NOTICES.
All notices and other communications required or permitted under this
Agreement shall be in writing, shall be deemed delivered upon receipt, and shall
be delivered in person or by courier or sent by certified or registered mail,
return receipt requested, first class, postage prepaid, to the parties at their
respective addresses set forth below, or as to any party at such other address
as shall be designated by such party in a written notice to the other party:
To TransAct: TransAct Technologies Inc.
0 Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attention: President
To Tridex: Tridex Corporation
00 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: President
SECTION 16. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Connecticut.
SECTION 17. COSTS AND EXPENSES.
In any action brought to enforce or interpret this Agreement, each
party shall pay its own costs and expenses of maintaining or defending such
action.
SECTION 18. REMEDIES CUMULATIVE.
The remedies provided in this Agreement are cumulative and not
exclusive of any remedies provided by law.
SECTION 19. COUNTERPARTS.
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This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which taken together shall
constitute one and the same Agreement.
SECTION 20. SEVERABILITY.
In the event that any portion of this Agreement shall be declared
invalid by order, decree or judgment of a court or governmental agency having
jurisdiction, this Agreement shall be construed as if such portion had not been
inserted herein, except when such construction would operate as an undue
hardship on any party to this Agreement or constitute a substantial deviation
from the general intent and purpose of said parties as reflected in this
Agreement.
SECTION 21. AMENDMENTS; WAIVER.
This Agreement may be amended, and the observance of any terms of this
Agreement may be waived, only in a written document signed by Tridex and
TransAct.
SECTION 22. EFFECTIVENESS OF AGREEMENT.
This Agreement shall become effective upon the Effective Date and
shall continue in effect until otherwise agreed in writing by Tridex and
TransAct, or their successors.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
TRIDEX CORPORATION
By:
Title:
TRANSACT TECHNOLOGIES INCORPORATED
By:
Title:
