EXHIBIT 10.4
TAX SHARING AGREEMENT
among
GENERAL SEMICONDUCTOR, INC.
COMMSCOPE, INC.
and
NEXTLEVEL SYSTEMS, INC.
TABLE OF CONTENTS
Page
SECTION 1. Definition of Terms 2
SECTION 2. Allocation of Tax Liabilities 7
SECTION 3. Proration of Taxes for Straddle Periods 11
SECTION 4. Preparation and Filing of Tax Returns 12
SECTION 5. Tax Payments and Intercompany Xxxxxxxx 17
SECTION 6. Tax Benefits 21
SECTION 7. Assistance and Cooperation 22
SECTION 8. Tax Records 23
SECTION 9. Tax Contests 24
SECTION 10. Effective Date; Termination of Prior Intercompany Tax 25
Allocation Agreements
SECTION 11. No Inconsistent Actions 25
SECTION 12. Survival of Obligations 27
SECTION 13. Employee Matters 27
SECTION 14. Treatment of Payments; Tax Gross Up 27
SECTION 15. Disagreements 29
SECTION 16. Late Payments 29
SECTION 17. Expenses 29
SECTION 18. General Provisions 30
(i)
TAX SHARING AGREEMENT
This Agreement is entered into as of July 25, 1997 by and among General
Semiconductor, Inc., a Delaware corporation ("GS"), CommScope, Inc., a Delaware
corporation ("CommScope"), and NextLevel Systems, Inc. a Delaware corporation
("Systems"). Capitalized terms used in this Agreement are defined in Section 1
below. Unless otherwise indicated, all "Section" references in this Agreement
are to sections of this Agreement.
RECITALS
WHEREAS, as of the opening of business on the date hereof, General
Instrument Corporation ("GI") was the common parent of an affiliated group of
corporations, including CommScope and Systems, which has elected to file
consolidated Federal income tax returns; and
WHEREAS, the Companies have entered into a Distribution Agreement, dated
as of June 12, 1997, setting forth the corporate transactions pursuant to which
GI will distribute all of the outstanding shares of common stock of Systems to
GI shareholders, and Systems will distribute all of the outstanding shares of
CommScope to Systems shareholders, in transactions intended to qualify as
tax-free distributions under Section 355 of the Code; and
WHEREAS, as a result of the Systems Distribution, CommScope and Systems,
and their respective subsidiaries, will cease to be members of the affiliated
group of which GI is the common parent, effective as of the Distribution Date;
and
WHEREAS, as a result of the CommScope Distribution, CommScope and its
subsidiaries will cease to be members of the affiliated group of which Systems
is the common parent, effective as of the CommScope Distribution Date; and
WHEREAS, as of the Distribution Date, GI will be renamed General
Semiconductor, Inc.; and
WHEREAS, the Companies desire to provide for and agree upon the allocation
between the parties of liabilities for Taxes arising prior to, as a result of,
and subsequent to the
- 1 -
transactions contemplated by the Distribution Agreement, and to provide for and
agree upon other matters relating to Taxes;
NOW THEREFORE, in consideration of the mutual agreements contained herein,
the Companies hereby agree as follows:
SECTION 1. Definition of Terms. For purposes of this Agreement
(including the recitals hereof), the following terms have the following
meanings:
"Accounting Cutoff Date" means, with respect to each of GS, CommScope and
Systems, any date as of the end of which there is a closing of the financial
accounting records for such entity.
"Accounting Firm" shall have the meaning provided in Section 15.
"Adjustment Request" means any formal or informal claim or request filed
with any Tax Authority, or with any administrative agency or court, for the
adjustment, refund, or credit of Taxes, including (a) any amended Tax return
claiming adjustment to the Taxes as reported on the Tax Return or, if
applicable, as previously adjusted, or (b) any claim for refund or credit of
Taxes previously paid.
"Affiliate" means any entity that directly or indirectly is "controlled"
by the person or entity in question. "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a person, whether through ownership of voting securities, by
contract or otherwise. Except as otherwise provided herein, the term Affiliate
shall refer to Affiliates of a person as determined immediately after the
Distributions.
"Agreement" shall mean this Tax Sharing Agreement.
"Allocated Federal Tax Liability" shall have the meaning provided in
Section 5.01(b)(i).
"Carryback" means any net operating loss, net capital loss, excess tax
credit, or other similar Tax item which may or must be carried from one Tax
Period to another Tax Period under the Code or other applicable Tax Law.
- 2 -
"Code" means the U.S. Internal Revenue Code of 1986, as amended, or any
successor law.
"CommScope" means CommScope, Inc., a Delaware corporation, and any
successor.
"CommScope Distribution" means the CommScope Distribution, as that term is
defined in the Distribution Agreement.
"CommScope Distribution Date" means the CommScope Distribution Date, as
that term is defined in the Distribution Agreement.
"CommScope Group" means Commscope and its Affiliates as determined
immediately after the Distributions.
"Companies" means GS, CommScope, and Systems, collectively, and "Company"
means any one of GS, CommScope or Systems.
"Consolidated or Combined Income Tax" means any Income Tax computed by
reference to the assets and activities of members of more than one Group.
"Consolidated or Combined State Income Tax" means any State Income Tax
computed by reference to the assets and activities of members of more than one
Group.
"Consolidated Tax Liability" means, with respect to any GI Federal
Consolidated Return, the "tax liability of the group" as that term is used in
Treasury Regulation Section 1.1552-1(a)(1) (including applicable interest,
additions to the tax, additional amounts, and penalties as provided in the
Code), provided that such tax liability shall be treated as including any
alternative minimum tax liability under Code Section 55.
"Cumulative Federal Tax Payment" shall have the meaning provided in
Section 5.01(b)(ii).
"Distribution Agreement" means the agreement, as amended from time to
time, setting forth the corporate transactions required to effect the
distribution to GI shareholders of Systems common shares, and the distribution
to Systems shareholders of CommScope common shares, and to which this Tax
Sharing Agreement is attached as an exhibit.
- 3 -
"Distribution Date" means the NextLevel Systems Distribution Date, as that
term is defined in the Distribution Agreement.
"Distributions" means the NextLevel Systems Distribution and the CommScope
Distribution, as such terms are defined in the Distribution Agreement.
"Federal Income Tax" means any Tax imposed by Subtitle A or F of the Code.
"Foreign Income Tax" means any Tax imposed by any foreign country or any
possession of the United States, or by any political subdivision of any foreign
country or United States possession, which is an income tax as defined in
Treasury Regulation Section 1.901-2.
"GI Delaware" means General Instrument Corporation of Delaware, a
Delaware corporation.
"GI Federal Consolidated Return" means any United States federal Tax
Return for the affiliated group (as that term is defined in Code Section 1504)
that includes GI or GS as the common parent and includes any member of the
CommScope Group or the Systems Group.
"GS" means General Semiconductor, Inc., a Delaware corporation, and any
successor.
"GS Group" means GS and its Affiliates, excluding any entity that is a
member of the Systems Group or the CommScope Group.
"Group" means the GS Group, the CommScope Group, and the Systems Group, as
the context requires.
"Income Tax" means any Federal Income Tax, State Income Tax, or Foreign
Income Tax.
"Payment Date" means (i) with respect to any GI Federal Consolidated
Return, the due date for any required installment of estimated taxes determined
under Code Section 6655, the due date (determined without regard to extensions)
for filing the return determined under Code Section 6072, and the date the
return is filed, and (ii) with respect to any Tax Return for any Consolidated or
Combined State Income Tax, the corresponding dates determined under the
applicable Tax Law.
- 4 -
"Pre-Distribution Consolidated Tax Liability" means Consolidated Tax
Liability with respect to all Tax Periods ending on or prior to the Distribution
Date and in the case of the Tax Period which includes the Distribution Date, the
Consolidated Tax Liability computed as if the Distribution Date were the last
day of the Tax Period.
"Post-Distribution Period" means any Tax Period beginning after the
Distribution Date, and, in the case of any Straddle Period, the portion of such
Straddle Period beginning the day after the Distribution Date.
"Pre-Distribution Period" means any Tax Period ending on or before the
Distribution Date, and, in the case of any Straddle Period, the portion of such
Straddle Period ending on the Distribution Date.
"Prime Rate" means the base rate on corporate loans charged by Citibank,
N.A., New York, New York from time to time, compounded daily on the basis of a
year of 365 or 366 (as applicable) days and actual days elapsed.
"Prior Intercompany Tax Allocation Agreements" means any written or oral
agreement or any other arrangements relating to allocation of Taxes existing
between or among the GS Group, the CommScope Group, and the Systems Group as of
the Distribution Date (other than this Agreement and other than any such
agreement or arrangement between or among persons who are members of a single
Group).
"Responsible Company" means, with respect to any Tax Return, the Company
having responsibility for preparing and filing such Tax Return under this
Agreement.
"Restructuring Tax" means the Taxes described in Sections 2.06(a)(ii) or
2.06(a)(iii) (relating to Tax resulting from any income or gain recognized as a
result of the Transactions).
"Ruling Request" means the letter filed by GI with the Internal Revenue
Service requesting a ruling from the Internal Revenue Service regarding certain
tax consequences of the Transactions (including all attachments, exhibits, and
other materials submitted with such ruling request letter) and any amendment or
supplement to such ruling request letter.
- 5 -
"Separate Company Tax" means any Tax computed by reference to the assets
and activities of a member or members of a single Group.
"Straddle Period" means any Tax Period that begins on or before and ends
after the Distribution Date.
"State Income Tax" means any Tax imposed by any State of the United States
or by any political subdivision of any such State which is imposed on or
measured by net income, including state and local franchise or similar Taxes
measured by net income.
"Systems" means NextLevel Systems, Inc., a Delaware corporation, and
any successor.
"Systems Delaware" means NextLevel Systems of Delaware, Inc., a
Delaware corporation.
"Systems Group" means Systems and its Affiliates as determined
immediately after the Distributions.
"Systems Distribution" means the NextLevel Systems Distribution, as that
term is defined in the Distribution Agreement.
"Tainting Act" shall have the meaning provided in Section 11.
"Tax" or "Taxes" means any income, gross income, gross receipts, profits,
capital stock, franchise, withholding, payroll, social security, workers
compensation, unemployment, disability, property, ad valorem, stamp, excise,
severance, occupation, service, sales, use, license, lease, transfer, import,
export, value added, alternative minimum, estimated or other similar tax
(including any fee, assessment, or other charge in the nature of or in lieu of
any tax) imposed by any governmental entity or political subdivision thereof,
and any interest, penalties, additions to tax, or additional amounts in respect
of the foregoing.
"Tax Authority" means, with respect to any Tax, the governmental entity or
political subdivision thereof that imposes such Tax, and the agency (if any)
charged with the collection of such Tax for such entity or subdivision.
- 6 -
"Tax Benefit" means any refund, credit, or other reduction in otherwise
required Tax payments (including any reduction in estimated tax payments), net
of any associated or corresponding item of income, gain or other increase in
otherwise required Tax payments.
"Tax Contest" means an audit, review, examination, or any other
administrative or judicial proceeding with the purpose or effect of
redetermining Taxes of any of the Companies or their Affiliates (including any
administrative or judicial review of any claim for refund).
"Tax Item" means, with respect to any Income Tax, any item of income,
gain, loss, deduction, and credit.
"Tax Law" means the law of any governmental entity or political
subdivision thereof relating to any Tax.
"Tax Period" means, with respect to any Tax, the period for which the Tax
is reported as provided under the Code or other applicable Tax Law.
"Tax Records" means Tax Returns, Tax Return workpapers, documentation
relating to any Tax Contests, and any other books of account or records required
to be maintained under the Code or other applicable Tax Laws or under any record
retention agreement with any Tax Authority.
"Tax Return" means any report of Taxes due, any claims for refund of Taxes
paid, any information return with respect to Taxes, or any other similar report,
statement, declaration, or document required to be filed under the Code or other
Tax Law, including any attachments, exhibits, or other materials submitted with
any of the foregoing, and including any amendments or supplements to any of the
foregoing.
"Transactions" means the transactions contemplated by the Distribution
Agreement (including the Corporate Restructuring Steps and Distributions, as
defined in such agreement).
"Transferred Communications Businesses" shall have the meaning provided
in Section 2.05.
- 7 -
"Treasury Regulations" means the regulations promulgated from time to time
under the Code as in effect for the relevant Tax Period.
SECTION 2. Allocation of Tax Liabilities. The provisions of this Section 2
are intended to determine each Company's liability for Taxes with respect to
Pre-Distribution Periods, Straddle Periods, and Post-Distribution Periods. Once
the liability has been determined under this Section 2, Section 5 determines the
time when payment of the liability is to be made, and whether the payment is to
be made to the Tax Authority directly or to another Company.
2.01 General Rule
(a) Systems Liability. Systems shall indemnify and hold harmless the
GS Group and the CommScope Group from and against any liability for Taxes
which Systems is liable for under this Section 2.
(b) GS Liability. GS shall be liable for, and shall indemnify and
hold harmless the Systems Group and the CommScope Group from and against
any liability for Taxes which are allocated to GS under this Section 2.
(c) CommScope Liability. CommScope shall be liable for, and shall
indemnify and hold harmless the Systems Group and the GS Group from and
against any liability for, Taxes which are allocated to CommScope under
this Section 2.
2.02 Allocation of United States Federal Income Tax. Except as
otherwise provided in this Agreement:
(a) Allocation of Tax Relating to GI Federal Consolidated Returns.
With respect to any GI Federal Consolidated Return: (i) Systems shall be
liable for all Pre-Distribution Consolidated Tax Liability and (ii) GS
shall be liable for any Consolidated Tax Liability for the Tax Period
which includes the Distribution Date in excess of Systems' liability under
clause (i).
(b) Allocation of GI Federal Consolidated Return Tax Adjustments.
With respect to any GI Federal Consolidated Return: (i) Systems shall be
liable for any adjustments to the
- 8 -
reported Pre-Distribution Consolidated Tax Liability and (ii) GS shall be
liable for any adjustments to the Consolidated Tax Liability for the Tax
Period which includes the Distribution Date in excess of Systems'
liability under clause (i).
2.03 Allocation of State Income Taxes. Except as otherwise provided in
this Agreement, State Income Taxes shall be allocated as follows:
(a) Separate Company Taxes. In the case of any State Income Tax
which is a Separate Company Tax that is apportioned under this Agreement
to a Pre-Distribution Period, Systems shall be liable (i) to GS for such
Tax imposed on any members of the GS Group, and (ii) to CommScope for such
Tax imposed on any members of the CommScope Group.
(b) Consolidated or Combined State Income Taxes.
(i) Allocation of Tax Reported on Tax Returns Filed After the
Distribution Date. Systems shall be liable for any Consolidated or
Combined State Income Tax that is apportioned under this Agreement
to a Pre-Distribution Period.
(ii) Allocation of Combined or Consolidated State Income Tax
Adjustments. Systems shall be liable for any adjustment to the
amount of Consolidated or Combined State Income Tax reported on any
Tax Return (or as previously adjusted) that is apportioned under
this Agreement to a Pre-Distribution Period.
2.04 Allocation of State Income Tax Effects of Federal Audit Adjustments.
Systems shall be liable for any State Income Taxes resulting from the
adjustments to GI Federal Consolidated Returns, to the extent that such State
Income Taxes are apportioned to a Pre-Distribution Period. In accordance with
Section 6, any Tax Benefit realized by the CommScope Group or by the GS Group as
a result of Systems' payment of such State Income Taxes shall be for the account
of Systems and shall be paid to Systems under Section 6. For example, if Systems
pays a State Income Tax liability of $100x related to adjustments to the Tax
Return of a member of the CommScope Group, and if such payment is available as a
deduction on the CommScope Group's Tax Return for Federal Income Tax, CommScope
shall pay to Systems the Federal Income Tax
- 9 -
benefit attributable to the deduction (i.e., $35x assuming a 35% maximum
marginal tax rate under Code Section 11, and assuming the payment is treated as
a nondeductible dividend, capital contribution, or combination thereof under the
Code in accordance with Section 14 of this Agreement).
2.05 Allocation of Foreign Income Taxes and Other Taxes. Except as
provided in Section 2.06, all Taxes (including without limitation any Foreign
Income Taxes and any Taxes with respect to Post-Distribution Periods) other than
those specifically allocated pursuant to Sections 2.02 through 2.04 shall be
allocated based on the legal entity on which the legal incidence of the Tax is
imposed; provided, however, any such Taxes specifically related to the
businesses transferred by GI Delaware to Systems in the Transactions (the
"Transferred Communications Businesses") shall be allocated to Systems. Subject
to the proviso in the preceding sentence, as between the parties to this
Agreement, GS shall be liable for all Taxes imposed on any member of the GS
Group, Systems shall be liable for all Taxes imposed on any member of the
Systems Group and CommScope shall be liable for all Taxes imposed on any member
of the CommScope Group. The Companies believe that there is no Tax not
specifically allocated pursuant to Sections 2.02 through 2.04 relating to
Pre-Distribution Periods which is legally imposed on more than one legal entity
or is not solely allocable to the Transferred Communications Businesses (e.g.,
joint and several liability); however, if there is any such Tax, it shall be
allocated in accordance with past practices as reasonably determined by the
affected Companies, or in the absence of such practices, in accordance with any
allocation method agreed upon by the affected Companies.
2.06 Transaction and Other Taxes
(a) Systems Liability. Except as otherwise provided in this Section
2.06, Systems shall be liable for, and shall indemnify and hold harmless
the GS Group and the CommScope Group from and against any liability for,
all Taxes resulting from the Transactions, including:
- 10 -
(i) Any sales and use, gross receipts, or other transfer
Taxes imposed on the transfers occurring pursuant to the
Transactions;
(ii) any Tax resulting from any income or gain recognized
under Treasury Regulation Sections 1.1502-13 or 1.1502-19 (or any
corresponding provisions of other applicable Tax Laws) as a result
of the Transactions; and
(iii) any Tax resulting from any income or gain recognized as
a result of any of the transactions contemplated by the Distribution
Agreement failing to qualify for tax-free treatment under Code
Sections 332, 351, 355, 361, or other provisions of the Code (as
contemplated in the Ruling Request) or other applicable Tax Laws.
(b) Indemnity for Inconsistent Acts. GS shall be liable for, and
shall indemnify and hold harmless the Systems Group and the CommScope
Group from and against any liability for, any Restructuring Tax (described
in subparagraphs (ii) and (iii) above) to the extent arising from any
breach of GS's representations or covenants under Section 11 or any
Tainting Act by GS or its Affiliates. CommScope shall be liable for, and
shall indemnify and hold harmless the Systems Group and the GS Group from
and against any liability for, any Restructuring Tax to the extent arising
from any breach of CommScope's representations or covenants under Section
11 or any Tainting Act by CommScope or its Affiliates.
(c) Indemnity for Representations. Systems shall be liable for, and
shall indemnify and hold harmless the GS Group and the CommScope Group
from and against any liability for, any Restructuring Tax to the extent
arising from the inaccuracy of any factual statements or representations
in connection with the Ruling Request, but only to the extent such
inaccuracy arises from facts in existence prior to the Distribution Date,
and excluding any inaccuracy with respect to any statements or
representations relating to CommScope or its Affiliates or any plan or
intention on the part of CommScope or its Affiliates as to actions to be
taken at or subsequent to the Distribution Date. CommScope shall be liable
for, and shall indemnify and hold harmless the Systems Group and the GS
Group from and against any liability for, any
- 11 -
Restructuring Tax to the extent arising from the inaccuracy of any factual
statements or representations relating to the CommScope or its Affiliates
in connection with the Ruling Request.
2.07 Application to Interim Period Between Distributions. The parties
intend that Systems and CommScope will file consolidated and combined Income Tax
Returns for the period beginning on the day after the Systems Distribution and
ending on the date of the CommScope Distribution. In connection with such
period, Systems and CommScope intend that the principles of this Agreement (with
Systems having the role of both Systems and, as applicable, GS) shall apply
thereto mutatis mutandis, except as the parties hereto may otherwise agree.
SECTION 3. Proration of Taxes for Straddle Periods
3.01 General Method of Proration. In the case of any Straddle Period, Tax
Items shall be apportioned between Pre-Distribution Periods and
Post-Distribution Periods in accordance with the principles of Treasury
Regulation Section 1.1502-76(b) as reasonably interpreted and applied by the
Companies. No election shall be made under Treasury Regulation Section
1.1502-76(b)(2)(ii) (relating to ratable allocation of a year's items). If the
Distribution Date is not an Accounting Cutoff Date, the provisions of Treasury
Regulation Section 1.1502-76(b)(2)(iii) will be applied to ratably allocate the
items (other than extraordinary items) for the month which includes the
Distribution Date.
3.02 Transaction Treated as Extraordinary Item. In determining the
apportionment of Tax Items between Pre-Distribution Periods and
Post-Distribution Periods, any Tax Items relating to the Transactions shall be
treated as an extraordinary item described in Treasury Regulation Section
1.1502-76(b)(2)(ii)(C) and shall be allocated to Pre-Distribution Periods, and
any Taxes related to such items shall be treated under Treasury Regulation
Section 1.1502-76(b)(2)(iv) as relating to such extraordinary item and shall be
allocated to Pre-Distribution Periods.
- 12 -
SECTION 4. Preparation and Filing of Tax Returns
4.01 General. Except as otherwise provided in this Section 4, Tax Returns
shall be prepared and filed when due (including extensions) by the person
obligated to file such Tax Returns under the Code or applicable Tax Law. The
Companies shall provide, and shall cause their Affiliates to provide, assistance
and cooperate with one another in accordance with Section 7 with respect to the
preparation and filing of Tax Returns, including providing information required
to be provided in Section 7.
4.02 Pre-Distribution Period and Straddle Period Tax Returns. All Tax
Returns required to be filed for Pre-Distribution Periods or Straddle
Periods, if not filed by the Distribution Date, shall be:
(1) prepared and filed by Systems, in the case of any Tax Returns
relating to a Consolidated or Combined Income Tax;1 and
(2) prepared and filed, or caused to be prepared and filed, by the
Group to which such Tax Return relates in all other cases.
Each of GS and CommScope shall, for each Tax Period or portion thereof for
which a member of the GS Group or the CommScope Group, respectively, is included
in a Tax Return described in clause (1) of the preceding sentence, provide
Systems with (i) a true and correct tax return for its Group together with an
accompanying computation of Tax liability of its Group, (ii) separate tax
returns for each member of its Group together with accompanying computations of
the separate tax return Tax liabilities of each member of its Group, and (iii) a
reconciliation of book income to federal taxable income for each member of its
Group. GS and CommScope each hereby agrees to use its best efforts to provide
Systems with such returns and computations no later than the first day of the
sixth month following the end of the period to which such returns and
computations relate, but in any event shall provide such returns and
computations to Systems
--------
1 Systems may prepare these Tax Returns under the Transition Services
Agreement.
- 13 -
no later than the fifteenth day of the sixth month following the end of the
period to which such returns and computations relate. Each of GS and CommScope,
in preparing the above mentioned tax returns for its Group, shall not consider
or give effect to any (i) net operating loss carryover or carryover, (ii)
capital loss carryover or carryback, (iii) excess charitable deduction
carryover, (iv) excess tax carryover or carryback, or (v) other similar
carryback or carryback item.
4.03 Post-Distribution Period Tax Returns. Except as otherwise
provided in Section 4.02 with respect to Straddle Period Tax Returns:
(1) All Tax Returns related to the CommScope Group for
Post-Distribution Periods shall be prepared and filed (or caused to be
prepared and filed) by CommScope,
(2) All Tax Returns related to the Systems Group for
Post-Distribution Periods shall be prepared and filed (or caused to be
prepared and filed) by Systems.
(3) All Tax Returns related to the GS Group for Post-Distribution
Periods shall be prepared and filed (or caused to be prepared and filed)
by GS.
4.04 Manner of Filing.
(a) All Tax Returns filed or caused to be filed by GS, CommScope or
Systems after the Distribution Date shall be prepared on a basis that is
consistent with any IRS ruling obtained by GI in connection with the
restructuring of GI contemplated by the Distribution Agreement (in the absence
of a controlling change in law or circumstances), and shall be filed on a timely
basis by the party responsible for such filing under this Agreement.
(b) All Tax Returns filed or caused to be filed by GS, or CommScope or
Systems after the Distribution Date shall be prepared (in the absence of a
controlling change in law or circumstances) consistent with past practices,
elections, accounting methods, conventions, and principles of taxation used for
the most recent taxable periods for which Tax Returns involving similar items
have been filed prior to the Distribution Date.
- 14 -
4.05 Right to Review Tax Returns
(a) General. The Responsible Company with respect to any Tax Return
shall make such Tax Return and related workpapers available for review by
the other Companies, if requested, to the extent (i) such Tax Return
relates to Taxes for which the requesting party may be liable, (ii) such
Tax Return relates to Taxes for which the requesting party may be liable
in whole or in part for any additional Taxes owing as a result of
adjustments to the amount of Taxes reported on such Tax Return, (iii) such
Tax Return relates to Taxes for which the requesting party may have a
claim for Tax Benefits under this Agreement, or (iv) the requesting party
reasonably determines that it must inspect such Tax Return to confirm
compliance with the terms of this Agreement. The Responsible Company shall
use its reasonable best efforts to make such Tax Return available for
review as required under this paragraph sufficiently in advance of the due
date for filing such Tax Returns to provide the requesting party with a
meaningful opportunity to analyze and comment on such Tax Returns and have
such Tax Returns modified before filing, taking into account the person
responsible for payment of the tax (if any) reported on such Tax Return
and the materiality of the amount of Tax liability with respect to such
Tax Return. The Companies shall attempt in good faith to resolve any
issues arising out of the review of such Tax Returns.
(b) Execution of Returns Prepared by Other Party. In the case of any
Tax Return which is required to be prepared and filed by one Company under
this Agreement and which is required by law to be signed by another
Company (or by its authorized representative), the Company which is
legally required to sign such Tax Return shall not be required to sign
such Tax Return under this Agreement if there is no reasonable basis for
the tax treatment of any material items reported on the Tax Return. Any
such Tax Return shall be supplied by the Company responsible for its
preparation and filing to the Company responsible for its signing at least
five days prior to the due date of such Tax Return (including applicable
extensions) and such signing Company shall deliver an executed copy of
such Tax Return to the filing
- 15 -
Company at least two days prior to the due date of such Tax Return
(including applicable extensions).
4.06 Claims for Refund, Carrybacks, and Self-Audit Adjustments
("Adjustment Requests")
(a) Consent Required for Adjustment Requests Related to Consolidated
or Combined Income Taxes. Except as provided in paragraph (b) below, each
of the Companies hereby agrees that, unless each of the other Companies
consents in writing, which consent shall not be unreasonably withheld, (i)
no Adjustment Request with respect to any Consolidated or Combined Income
Tax for a Pre-Distribution Period shall be filed, and (ii) any available
elections to waive the right to claim in any Pre-Distribution Period with
respect to any Consolidated or Combined Income Tax any Carryback arising
in a Post-Distribution Period shall be made, and no affirmative election
shall be made to claim any such Carryback. Any Adjustment Request which
the Companies consent to make under this Section 4.06 shall be prepared
and filed by the Responsible Company under Sections 4.02 and 4.03 for the
Tax Return to be adjusted. The Company requesting the Adjustment Request
shall provide to the Responsible Company all information required for the
preparation and filing of such Adjustment Request in such form and detail
as reasonably requested by the Responsible Company.
(b) Exception for Adjustment Requests Related to Audit Adjustments.
Each of the Companies shall be entitled, without the consent of any other
Company, to require GS to file an Adjustment
- 16 -
Request to take into account any net operating loss, net capital loss,
deduction, credit, or other adjustment attributable to such Company or any
member of its Group corresponding to any adjustment resulting from any
audit by the Internal Revenue Service or other Tax Authority with respect
to Consolidated or Combined Income Taxes for any Pre-Distribution Period.
For example, if the Internal Revenue Service requires a Company to
capitalize an item deducted for the taxable year 1993, such Company shall
be entitled, without the consent of any other Company, to require GS to
file an Adjustment Request for the taxable year 1994 (and later years) to
take into account any depreciation or amortization deductions in such
years directly related to the item capitalized in 1993. In addition,
Systems shall be entitled to require GS or CommScope, as appropriate, to
file an Adjustment Request of the same sort with respect to Separate
Company Taxes for any Pre-Distribution Periods.
(c) Other Adjustment Requests Permitted. Nothing in this Section
4.06 shall prevent any Company or its Affiliates from filing any
Adjustment Request with respect to Income Taxes which are not Consolidated
or Combined Income Taxes or with respect to any Taxes other than Income
Taxes; provided, however, that without the written consent of Systems
(which consent shall not be unreasonably withheld) neither GS nor
CommScope shall file an amended Tax Return with respect to Taxes for which
Systems is liable under this Agreement. Any refund or credit obtained as a
result of any such Adjustment Request (or otherwise) shall be for the
account of the person liable for the Tax under this Agreement.
(d) Payment of Refunds. Any refunds or other Tax Benefits received
by any Company (or any of its Affiliates) as a result of any Adjustment
Request which are for the account of another Company (or member of such
other Company's Group) shall be paid by the Company receiving (or whose
Affiliate received) such refund or Tax Benefit to such other Company in
accordance with Section 6.
SECTION 5. Tax Payments and Intercompany Xxxxxxxx
5.01 Payment of Taxes With Respect to GI Federal Consolidated Returns
Filed After the Distribution Date. In the case of any GI Federal Consolidated
Return the due date for which (including extensions) is after the
Distribution Date,
(a) Computation and Payment of Tax Due. At least ten business days
prior to any Payment Date, GS shall compute the amount of Tax required to
be paid to the Internal Revenue Service (taking into account the
requirements of Section 4.04 relating to consistent accounting practices)
with respect to such Tax Return on such Payment Date and shall notify
- 17 -
Systems in writing of the amount of Tax required to be paid on such
Payment Date. GS will pay such amount to the Internal Revenue Service on
or before such Payment Date.
(b) Computation and Payment of Systems Liability With Respect to
Tax Due. Within 30 days following any Payment Date, Systems will pay to
GS the excess (if any) of
(i) the Pre-Distribution Consolidated Tax Liability determined
as of such Payment Date with respect to the applicable Tax Period
allocable to Systems in a manner consistent with the provisions of
Section 2.02(a) (the "Allocated Federal Tax Liability"), over
(ii) the cumulative net payments with respect to such Tax
Return prior to such Payment Date made before the Distribution Date,
plus all such payments by the members of the Systems Group made from
the Distribution Date to the Payment Date (the "Cumulative Federal
Tax Payment").
If the Systems Cumulative Federal Tax Payment is greater than the Systems
Allocated Federal Tax Liability as of any Payment Date, then GS shall pay
such excess to Systems within 30 days of GS's receipt of the corresponding
Tax Benefit (i.e., through either a reduction in GS's otherwise required
Tax payment, or a refund of prior Tax payments).
(c) Interest on Intergroup Tax Allocation Payments. In the case of
any payments to GS required under paragraph (b) of this subsection 5.01,
Systems shall also pay to GS an amount of interest computed at the Prime
Rate on the amount of the payment required based on the number of days
from the applicable Payment Date to the date of payment. In the case of
any payments by GS required under paragraph (b) of this subsection 5.01,
GS shall also pay to the payee an amount of interest computed at the Prime
Rate on the amount of the payment required based on the number of days
from the date of receipt of the Tax Benefit to the date of payment of such
amount to the payee.
(d) Representation Regarding Cumulative 1997 Federal Income Tax
Payments. Systems represents and warrants to GS that, as of the the
date hereof, $16,500,000 of cumulative net
- 18 -
payments have been made by GI, and credited by the Internal Revenue
Service, with respect to the 1997 GI Federal Consolidated Return.
5.02 Payment of Federal Income Tax Related to Adjustments
(a) Adjustments Resulting in Underpayments. GS shall pay to the
Internal Revenue Service when due any additional Federal Income Tax
required to be paid as a result of any adjustment to the Pre-Distribution
Consolidated Tax Liability with respect to any GI Federal Consolidated
Return. Systems shall pay to GS such amount within 30 days from the later
of (i) the date the additional Tax was paid by GS or (ii) the date of
receipt by Systems of a written notice and demand from GS for payment of
the amount due, accompanied by evidence of payment and a statement
detailing the Taxes paid and describing in reasonable detail the
particulars relating thereto. Any payments required under this Section
5.02(a) shall include interest computed at the Prime Rate based on the
number of days from the date the additional Tax was paid by GS to the date
of the payment under this Section 5.02(a).
(b) Adjustments Resulting in Overpayments. Within 30 days of receipt
by GS of any Tax Benefit resulting from any adjustment to the
Pre-Distribution Consolidated Tax Liability with respect to any GI Federal
Consolidated Return, GS shall pay to Systems its share of any such Tax
Benefit, as determined by Systems. Any payments required under this
Section 5.02(b) shall include interest computed at the Prime Rate based on
the number of days from the date the Tax Benefit was received by GS to the
date of payment to Systems Company under this Section 5.02(b).
5.03 Payment of State Income Tax Relating to Pre-Distribution
Periods With Respect to Returns Filed After the Distribution Date
(a) Computation and Payment of Tax Due. At least three business days
prior to any Payment Date for any Tax Return with respect to any State
Income Tax relating to a Pre-Distribution Period, the Responsible Company
shall compute the amount of Tax required to be paid to the applicable Tax
Authority (taking into account the requirements of Section 4.04
- 19 -
relating to consistent accounting practices) with respect to such Tax
Return on such Payment Date and--
(i) If such Tax Return is with respect to a Consolidated or
Combined State Income Tax, GS shall notify Systems in writing of the
amount of Tax required to be paid on such Payment Date. GS will pay
such amount to such Tax Authority on or before such Payment Date.
(ii) If such Tax Return is with respect to a Separate Company
Tax, the Responsible Company shall, if it is not the Company liable
for the Tax reported on such Tax Return, notify the Company liable
for such Tax in writing of the amount of Tax required to be paid on
such Payment Date. The Company liable for such Tax will pay such
amount to such Tax Authority on or before such Payment Date.
(b) Computation and Payment of Systems Liability With Respect to Tax
Due. Within 120 days following the due date (including extensions) for
filing any Tax Return for any Consolidated or Combined State Income Tax
(excluding any Tax Return with respect to payment of estimated Taxes or
Taxes due with a request for extension of time to file) relating to a
Pre-Distribution Period, Systems shall pay to GS the tax liability
allocable to Systems as determined by Systems under the provisions of
Section 2.03(b)(i), plus interest computed at the Prime Rate on the amount
of the payment based on the number of days from the due date (including
extensions) to the date of payment by Systems to GS
5.04 Payment of State Income Taxes Related to Adjustments
(a) Adjustments Resulting in Underpayments. GS shall pay to the
applicable Tax Authority when due any additional State Income Tax required
to be paid as a result of any adjustment to the Tax liability with respect
to any Tax Return for any Consolidated or Combined State Income Tax for
any Pre-Distribution Period. Systems shall pay to GS its respective share
of any such additional Tax payment determined by Systems in accordance
with Section 2.03(b)(ii) within 120 days from the later of (i) the date
the additional Tax was
- 20 -
paid by GS or (ii) the date of receipt by Systems of a written notice and
demand from GS for payment of the amount due, accompanied by evidence of
payment and a statement detailing the Taxes paid and describing in
reasonable detail the particulars relating thereto. Systems shall also pay
to GS interest on its respective share of such Tax computed at the Prime
Rate based on the number of days from the date the additional Tax was paid
by GS to the date of its payment to GS under this Section 5.04(a).
(b) Adjustments Resulting in Overpayments. Within 120 days of
receipt by GS of any Tax Benefit resulting from any adjustment to the Tax
liability with respect to any Tax Return for any Consolidated or Combined
State Income Tax for any Pre-Distribution Period, GS shall pay to Systems
its share of any such Tax Benefit determined by Systems. Any payments
required under this Section 5.04(b) computed at the Prime Rate based on
the number of days from the date the Tax Benefit was received by GS to the
date of payment to Systems under this Section 5.04(b).
5.05 Payment of Separate Company Taxes. Each Company shall pay, or
shall cause to be paid, to the applicable Tax Authority when due all Separate
Company Taxes owed by such Company or a member of such Company's Group.
5.06 Indemnification Payments. If any Company (the "payor") is
required to pay to a Tax Authority a Tax that another Company (the "responsible
party") is required to pay to such Taxing Authority under this Agreement, the
responsible party shall reimburse the payor within 30 days of delivery by the
payor to the responsible party of an invoice for the amount due, accompanied by
evidence of payment and a statement detailing the Taxes paid and describing in
reasonable detail the particulars relating thereto. The reimbursement shall
include interest on the Tax payment computed at the Prime Rate based on the
number of days from the date of the payment to the Tax Authority to the date of
reimbursement under this Section 5.06.
- 21 -
Section 6. Tax Benefits
If a Tax Benefit accrues to a member of one Group as the result of
an adjustment to any Tax Return with respect to any Taxes for which a member of
another Group is liable hereunder, the Company to which such Tax Benefit accrues
shall make a payment to the Company that is liable for such Taxes hereunder
within 30 days following accrual of the Tax Benefit. Such payment shall be in an
amount equal to the present value of such Tax Benefit (including any Tax Benefit
realized as a result of the payment), plus interest on such amount computed at
the Prime Rate based on the number of days from the date of accrual of the Tax
Benefit to the date of payment of such amount under this Section; provided,
however, that no payment under this Section 6 by the Company to which such Tax
Benefit accrues shall exceed the present value of the detriment to the Company
liable for such Taxes, which deteriment results from the adjustment giving rise
to such Tax Benefit.
Section 7. Assistance and Cooperation
7.01 General. After the Distribution Date, each of the Companies
shall cooperate (and cause their respective Affiliates to cooperate) with each
other and with each other's agents, including accounting firms and legal
counsel, in connection with Tax matters relating to the Companies and their
Affiliates including (i) preparation and filing of Tax Returns, (ii) determining
the liability for and amount of any Taxes due (including estimated Taxes) or the
right to and amount of any refund of Taxes, (iii) examinations of Tax Returns,
and (iv) any administrative or judicial proceeding in respect of Taxes assessed
or proposed to be assessed. Such cooperation shall include making all
information and documents in their possession relating to the other Companies
and their Affiliates available to such other Companies as provided in Section 8.
Each of the Companies shall also make available to each other, as reasonably
requested and available, personnel (including officers, directors, employees and
agents of the Companies or their respective Affiliates) responsible for
preparing, maintaining, and interpreting information and documents relevant to
Taxes, and personnel reasonably required as witnesses or
- 22 -
for purposes of providing information or documents in connection with any
administrative or judicial proceedings relating to Taxes. Any information or
documents provided under this Section 7 shall be kept confidential by the
Company receiving the information or documents, except as may otherwise be
necessary in connection with the filing of Tax Returns or in connection with any
administrative or judicial proceedings relating to Taxes.
7.02 Income Tax Return Information. Each Company will provide to
each other Company information and documents relating to their respective Groups
required by the other Companies to prepare Tax Returns. The Responsible Company
shall determine a reasonable compliance schedule for such purpose in accordance
with GI's past practices. Any additional information or documents the
Responsible Company requires to prepare such Tax Returns will be provided in
accordance with past practices, if any, or as the Responsible Company reasonably
requests and in sufficient time for the Responsible Company to file such Tax
Returns timely.
Section 8. Tax Records
8.01 Retention of Tax Records. Except as provided in Section 8.02,
each Company shall preserve and keep all Tax Records exclusively relating to the
assets and activities of their respective Groups for Pre-Distribution Tax
Periods, and Systems shall preserve and keep all other Tax Records relating to
Taxes of the Groups for Pre-Distribution Tax Periods, for so long as the
contents thereof may become material in the administration of any matter under
the Code or other applicable Tax Law, but in any event until the later of (i)
the expiration of any applicable statutes of limitation, and (ii) seven years
after the Distribution Date. If, prior to the expiration of the applicable
statute of limitation and such seven-year period, a Company reasonably
determines that any Tax Records which it is required to preserve and keep under
this Section 8 are no longer material in the administration of any matter under
the Code or other applicable Tax Law, such Company may dispose of such records
upon 90 days prior notice to the other Companies. Such notice shall include a
list of the records to be disposed of describing in reasonable detail each file,
book, or other record accumulation being disposed. The notified
- 23 -
Companies shall have the opportunity, at their cost and expense, to copy or
remove, within such 90-day period, all or any part of such Tax Records.
8.02 State Income Tax Returns. Tax Returns with respect to State
Income Taxes and workpapers prepared in connection with preparing such Tax
Returns shall be preserved and kept, in accordance with the guidelines of
Section 8.01, by the Company responsible for preparing and filing the applicable
Tax Return.
8.03 Access to Tax Records. The Companies and their respective
Affiliates shall make available to each other for inspection and copying during
normal business hours upon reasonable notice all Tax Records in their possession
to the extent reasonably required by the other Company in connection with the
preparation of Tax Returns, audits, litigation, or the resolution of items under
this Agreement.
Section 9. Tax Contests
9.01 Notice. Each of the parties shall provide prompt notice to the
other parties of any pending or threatened Tax audit, assessment or proceeding
or other Tax Contest of which it becomes aware related to Taxes for Tax Periods
for which it is indemnified by one or more other parties hereunder. Such notice
shall contain factual information (to the extent known) describing any asserted
Tax liability in reasonable detail and shall be accompanied by copies of any
notice and other documents received from any Tax Authority in respect of any
such matters. If an indemnified party has knowledge of an asserted Tax liability
with respect to a matter for which it is to be indemnified hereunder and such
party fails to give the indemnifying party prompt notice of such asserted Tax
liability, then (i) if the indemnifying party is precluded from contesting the
asserted Tax liability in any forum as a result of the failure to give prompt
notice, the indemnifying party shall have no obligation to indemnify the
indemnified party for any Taxes arising out of such asserted Tax liability, and
(ii) if the indemnifying party is not precluded from contesting the asserted Tax
liability in any forum, but such failure to give prompt notice results in a
monetary detriment to the indemnifying party, then any amount which the
indemnifying
- 24 -
party is otherwise required to pay the indemnified party pursuant to this
Agreement shall be reduced by the amount of such detriment.
9.02 Control of Tax Contests. Each Company shall have full
responsibility and discretion in handling, settling or contesting any Tax
Contest involving a Tax for which it is liable pursuant to Section 2 of this
Agreement; provided, however, Systems may participate in any Tax Contest with
respect to Restructuring Taxes regardless of whether it has liability or
indemnification obligations with respect to such Taxes under this Agreement.
Section 10. Effective Date; Termination of Prior Intercompany Tax
Allocation Agreements. This Agreement shall be effective on the Distribution
Date. Immediately prior to the close of business on the Distribution Date (i)
all Prior Intercompany Tax Allocation Agreements (the "Prior Agreements") shall
be terminated, and (ii) amounts due under such Prior Agreements as of the
Distribution Date shall be settled as of the Distribution Date (including
capitalization or distribution of amounts due or receivable under such
agreements). Upon such termination and settlement, no further payments by or to
the GS Group, by or to the CommScope Group, or by or to the Systems Group, with
respect to such Prior Agreements shall be made, and all other rights and
obligations resulting from such Prior Agreements between the Companies and their
Affiliates shall cease at such time. Any payments pursuant to such Prior
Agreements shall be ignored for purposes of computing amounts due under this
Agreement.
Section 11. No Inconsistent Actions.
(a) Each of the Companies covenants and agrees that it will not take
any action, and it will cause its Affiliates to refrain from taking any
action, which may be inconsistent with the Tax treatment of the
Transactions as contemplated in the Ruling Request (any such action is
referred to in this Section 11 as a "Tainting Act"), unless (i) the
Company or Affiliate thereof proposing such Tainting Act (the "Requesting
Party") either (A) obtains a ruling with respect to the Tainting Act from
the Internal Revenue Service or other applicable Tax Authority that is
reasonably satisfactory to each other Company (the "Requested Parties")
(except that the
- 25 -
Requesting Party shall not submit any such ruling request if a Requested
Party determines in good faith that filing such request might have a
materially adverse effect upon such Requested Party), or (B) obtains an
unqualified opinion of independent nationally recognized tax counsel
acceptable to each Requested Party, on a basis of assumed facts and
representations consistent with the facts at the time of such action, that
such Tainting Act will not affect the Tax treatment of the Transactions as
contemplated in the Ruling Request, or (ii) each Requested Party consents
in writing to such Tainting Act, which consent shall be granted or
withheld in the sole and absolute discretion of each such Requested Party.
Without limiting the foregoing:
(i) Specified Actions. During the two year period following
the Distribution Date, unless clause (i) or (ii) of the preceding
paragraph is satisfied with respect to the applicable action, no
Company or its Affiliate will (A) liquidate or merge with or into
any other corporation (other than a merger which results in the
outstanding stock of such Company or its Affiliates immediately
before the merger continuing to represent at least eighty (80)
percent of the outstanding voting stock and non-voting stock of the
merged corporations after the transaction); (B) issue more than 20%,
by vote or value, of its capital stock in one or more transactions;
(C) redeem, purchase or otherwise reacquire more than five (5)
percent, by vote or value, of its capital stock in one or more
transactions (other than in connection with future employee benefit
plans or pursuant to a future market purchase program involving five
(5) percent or less of its publicly traded stock); (D) sell,
exchange, distribute or otherwise dispose of, other than in the
ordinary course of business, more than 25% of the assets
constituting the trades or businesses relied upon in the Ruling
Request to sastisfy Section 355(b) of the Code; or (E) discontinue
or cause to be discontinued the active conduct of the trades or
businesses relied upon in the Ruling Request to satisfy Section
355(b) of the Code.
- 26 -
(ii) No Inconsistent Plan or Intent. Each of the Companies
represents and warrants that neither it nor any of its Affiliates
has any plan or intent to take any action which is inconsistent with
any factual statements or representations in the Ruling Request.
Regardless of any change in circumstances, each of the Companies
covenants and agrees that it will not take, and it will cause its
Affiliates to refrain from taking, any such inconsistent action on
or before the last day of the calendar year ending after the second
anniversary of the Distribution Date other than as permitted in this
Section 11.
(iii) Amended or Supplemental Rulings. Each of the Companies
covenants and agrees that it will not file, and it will cause its
Affiliates to refrain from filing, any amendment or supplement to
the Ruling Request subsequent to the Distribution Date without the
consent of the other Companies, which consent shall not be
unreasonably withheld.
(b) Notwithstanding anything to the contrary in this Agreement, each
Company shall be solely liable for, and shall indemnify and hold harmless
each other Company from any Restructuring Tax resulting from a Tainting
Act by such first Company or its Affiliates, regardless of whether clause
(i) or (ii) of Section 11(a) was satisfied with respect to such Tainting
Act.
Section 12. Survival of Obligations. The representations,
warranties, covenants and agreements set forth in this Agreement shall be
unconditional and absolute and shall remain in effect without limitation as to
time.
Section 13. Employee Matters. Each of the Companies agrees to
utilize, or cause its Affiliates to utilize, the alternative procedure set forth
in Revenue Procedure 84-77, 1984-2 C.B. 753, with respect to wage reporting.
Section 14. Treatment of Payments; Tax Gross Up
14.01 Treatment of Tax Indemnity and Tax Benefit Payments. In the
absence of any change in tax treatment under the Code or other applicable Tax
Law,
- 27 -
(a) any Tax indemnity payments made by a Company under Section 5
shall be reported for Tax purposes by the payor and the recipient as
distributions or capital contributions, as appropriate, occurring
immediately before the Systems Distribution on the Distribution Date, but
only to the extent the payment does not relate to a Tax allocated to the
payor in accordance with Treasury Regulation Section 1.1502-33(d) (or
under corresponding principles of other applicable Tax Laws), and
(b) any Tax Benefit payments made by a Company under Section 6,
shall be reported for Tax purposes by the payor and the recipient as
distributions or capital contributions, as appropriate, occurring
immediately before the Systems Distribution on the Distribution Date, but
only to the extent the payment does not relate to a Tax allocated to the
payor in accordance with Treasury Regulation Section 1.1502-33(d) (or
under corresponding principles of other applicable Tax Laws).
14.02 Tax Gross Up. If notwithstanding the manner in which Tax
indemnity payments and Tax Benefit payments were reported, there is an
adjustment to the Tax liability of a Company as a result of its receipt of a
payment pursuant to this Agreement, such payment shall be appropriately adjusted
so that the amount of such payment, reduced by the amount of all Income Taxes
payable with respect to the receipt thereof (but taking into account all
correlative Tax Benefits resulting from the payment of such Income Taxes), shall
equal the amount of the payment which the Company receiving such payment would
otherwise be entitled to receive pursuant to this Agreement.
14.03 Interest Under This Agreement. Anything herein to the contrary
notwithstanding, to the extent one Company ("indemnitor") makes a payment of
interest to another Company ("indemnitee") under this Agreement with respect to
the period from the date that the indemnitee made a payment of Tax to a Tax
Authority to the date that the indemnitor reimbursed the indemnitee for such Tax
payment, or with respect to the period from the date that the indemnitor
received a Tax Benefit to the date indemnitor paid the Tax Benefit to the
indemnitee, the interest
- 28 -
payment shall be treated as interest expense to the indemnitor (deductible to
the extent provided by law) and as interest income by the indemnitee (includible
in income to the extent provided by law). The amount of the payment shall not be
adjusted under Section 14.02 to take into account any associated Tax Benefit to
the indemnitor or increase in Tax to the indemnitee.
Section 15. Disagreements. If after good faith negotiations the
parties cannot agree on the application of this Agreement to any matter, then
the matter will be referred to a nationally recognized accounting firm
acceptable to each of the parties (the "Accounting Firm"). The Accounting Firm
shall furnish written notice to the parties of its resolution of any such
disagreement as soon as practical, but in any event no later than 45 days after
its acceptance of the matter for resolution. Any such resolution by the
Accounting Firm will be conclusive and binding on all parties to this Agreement.
In accordance with Section 17, each party shall pay its own fees and expenses
(including the fees and expenses of its representatives) incurred in connection
with the referral of the matter to the Accounting Firm. All fees and expenses of
the Accounting Firm in connection with such referral shall be shared equally by
the parties affected by the matter.
Section 16. Late Payments. Any amount owed by one party to another
party under this Agreement which is not paid when due shall bear interest at the
Prime Rate plus two percent, compounded semiannually, from the due date of the
payment to the date paid. To the extent interest required to be paid under this
Section 16 duplicates interest required to be paid under any other provision of
this Agreement, interest shall be computed at the higher of the interest rate
provided under this Section 16 or the interest rate provided under such other
provision.
Section 17. Expenses. Except as provided in Section 15, each party
and its Affiliates shall bear their own expenses incurred in connection with
preparation of Tax Returns, Tax Contests, and other matters related to Taxes
under the provisions of this Agreement.
- 29 -
Section 18. General Provisions
18.01 Addresses and Notices. Any notice, demand, request or report
required or permitted to be given or made to any party under this Agreement
shall be in writing and shall be deemed given or made when delivered in party or
when sent by first class mail or by other commercially reasonable means of
written communication (including delivery by an internationally recognized
courier service or by facsimile transmission) to the party at the party's
address as follows:
If to GS, at: General Semiconductor, Inc.
00 Xxxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attn: General Counsel
If to Systems, at: NextLevel Systems, Inc.
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
If to CommScope, at: CommScope, Inc.
0000 Xxxxxx-Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: General Counsel
A party may change the address for receiving notices under this Agreement by
providing written notice of the change of address to the other parties.
18.02 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and assigns.
18.03 Waiver. No failure by any party to insist upon the strict
performance of any obligation under this Agreement or to exercise any right or
remedy under this Agreement shall constitute waiver of any such obligation,
right, or remedy or any other obligation, rights, or remedies under this
Agreement.
18.04 Invalidity of Provisions. If any provision of this Agreement
is or becomes invalid, illegal or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions contained herein shall
not be affected thereby.
- 30 -
18.05 Further Action. The parties shall execute and deliver all
documents, provide all information, and take or refrain from taking action as
may be necessary or appropriate to achieve the purposes of this Agreement,
including the execution and delivery to the other parties and their Affiliates
and representatives of such powers of attorney or other authorizing
documentation as is reasonably necessary or appropriate in connection with Tax
Contests (or portions thereof) under the control of such other parties in
accordance with Section 9.
18.06 Integration. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter of this Agreement and
supersedes all prior agreements and understandings pertaining thereto. In the
event of any inconsistency between this Agreement and the Distribution Agreement
or any other agreements relating to the transactions contemplated by the
Distribution Agreement, the provisions of this Agreement shall control.
18.07 Construction. The language in all parts of this Agreement
shall in all cases be construed according to its fair meaning and shall not be
strictly construed for or against any party.
18.08 No Double Recovery; Subrogation. No provision of this
Agreement shall be construed to provide an indemnity or other recovery for any
costs, damages, or other amounts for which the damaged party has been fully
compensated under any other provision of this Agreement or under any other
agreement or action at law or equity. Unless expressly required in this
Agreement, a party shall not be required to exhaust all remedies available under
other agreements or at law or equity before recovering under the remedies
provided in this Agreement. Subject to any limitations provided in this
Agreement (for example, the limitation on filing claims for refund in Section
4.06), the indemnifying party shall be subrogated to all rights of the
indemnified party for recovery from any third party.
18.09 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
- 31 -
18.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State.
- 32 -
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by the respective officers as of the date set forth above.
GENERAL SEMICONDUCTOR, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, CEO & President
NEXTLEVEL SYSTEMS, INC.
By: /s/ Xxxxx X. Zar
----------------
Name: Xxxxx X. Zar
Title: Vice President and General Counsel
COMMSCOPE, INC.
By: /s/ Xxxxx X. Xxxxx, XX
----------------------
Name: Xxxxx X. Xxxxx, XX
Title: Secretary
