Exhibit 10.2
[FORM OF TAX SHARING AGREEMENT]
TAX SHARING AGREEMENT
BETWEEN
IVEX PACKAGING CORPORATION
AND
PACKAGING DYNAMICS CORPORATION
May [.], 2002
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
Section 1.1 Code........................................................ 1
Section 1.2 Distribution Agreement...................................... 1
Section 1.3 Distribution................................................ 1
Section 1.4 Distribution................................................ 2
Section 1.5 Final Determination......................................... 2
Section 1.6 Indemnified Party........................................... 2
Section 1.7 Indemnifying Party.......................................... 2
Section 1.8 IRS......................................................... 2
Section 1.9 Ivex Consolidated Group..................................... 2
Section 1.10 Ivex Consolidated Return Period............................. 2
Section 1.11 Ivex Consolidated Return.................................... 3
Section 1.12 Ivex Consolidated Tax Liability............................. 3
Section 1.13 Merger Agreement............................................ 3
Section 1.14 Merger...................................................... 3
Section 1.15 Packaging Dynamics.......................................... 3
Section 1.16 PD Letter Agreement......................................... 3
Section 1.17 Person...................................................... 3
Section 1.18 Post-Distribution Taxable Period............................ 3
Section 1.19 Pre-Distribution Taxable Period............................. 3
Section 1.20 Proceeding.................................................. 3
Section 1.21 Refund...................................................... 3
Section 1.22 Straddle Period............................................. 3
Section 1.23 Subsidiary.................................................. 3
Section 1.24 Tax Benefit................................................. 4
Section 1.25 Tax Item.................................................... 4
Section 1.26 Tax Liability............................................... 4
Section 1.27 Tax Return.................................................. 4
Section 1.28 Tax......................................................... 4
Section 1.29 Taxing Authority............................................ 4
Section 1.30 Treasury Regulation ....................................... 4
ARTICLE II PREPARATION AND FILING OF TAX RETURNS; PAYMENT OF TAX
Section 2.1 Tax Returns of Ivex ....................................... 4
Section 2.2 Tax Liability ............................................. 5
Section 2.3 Packaging Dynamics Separate Returns and Tax Liability ..... 5
ARTICLE III INDEMNIFICATION FOR TAXES
Section 3.1 Indemnification by Ivex ................................... 5
Section 3.2 Indemnification by Packaging Dynamics ..................... 6
ARTICLE IV TAX CONTESTS
Section 4.1 Notification .............................................. 6
Section 4.2 Proceedings Involving Ivex ................................ 6
ARTICLE V REFUNDS AND TAX SHARING AGREEMENTS
Section 5.1 Refunds ................................................... 7
Section 5.2 Tax Sharing Agreements .................................... 8
Section 5.3 Compensation Deductions. Ivex (or the appropriate member of
the Ivex Consolidated Group) shall claim all Tax deductions arising by
reason of exercised of options on, or receipt or vesting of restricted
shares of, Ivex stock.
ARTICLE VI COOPERATION AND EXCHANGE OF INFORMATION
Section 6.1 Cooperation ............................................... 8
Section 6.2 Retention of Records ...................................... 9
ARTICLE VII PAYMENTS
Section 7.1 Method of Payment ......................................... 10
Section 7.2 Interest .................................................. 10
Section 7.3 Characterization of Payments .............................. 10
Section 7.4 Time of Indemnification Payment ........................... 11
ARTICLE VIII MISCELLANEOUS PROVISIONS
Section 8.1 Entire Agreement .......................................... 11
Section 8.2 Governing Law ............................................. 11
Section 8.3 Notices ................................................... 11
Section 8.4 Amendment ................................................. 11
Section 8.5 Counterparts .............................................. 11
Section 8.6 Binding Effect; Assignment ................................ 11
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Section 8.7 Severability ............................................ 12
Section 8.8 Waiver of Breach ........................................ 12
Section 8.9 Amendment and Execution ................................. 12
Section 8.10 Authority ............................................... 12
Section 8.11 Descriptive Headings .................................... 12
Section 8.12 Gender and Number ....................................... 12
Section 8.13 Additional Assurances ................................... 13
Section 8.14 Force Majeure ........................................... 13
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TAX SHARING AGREEMENT
This Tax Sharing Agreement (this "Agreement") is entered into as of May [],
2002, by and between Ivex Packaging Corporation, a Delaware corporation
("Ivex"), and Packaging Dynamics Corporation, a Delaware corporation and
wholly-owned subsidiary of Ivex ("Packaging Dynamics"). Ivex and Packaging
Dynamics are sometimes referred to herein individually as a "party" or
collectively as the "parties."
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger dated March 18, 2002
(the "Merger Agreement") by and between Ivex, Alcoa Inc., a Pennsylvania
corporation ("Alcoa"), and AI Merger Sub Inc., a Delaware corporation and
wholly-owned subsidiary of Alcoa, Alcoa will acquire all of the outstanding
stock of Ivex by merging AI Merger Sub Inc. with and into Ivex (the "Merger");
WHEREAS, as a condition of, and immediately prior to, the Merger, Ivex will
declare a pro rata distribution to its stockholders of all of the capital stock
of Packaging Dynamics (the "Distribution");
WHEREAS, at the close of the business on the date the Distribution is
effective, Packaging Dynamics will cease to be a member of the Ivex Consolidated
Group (as defined below); and
WHEREAS, as a result of the Distribution the parties hereto wish to provide
for the payment of Taxes (as defined herein) and entitlement to refunds thereof,
allocate responsibility and provide for cooperation in connection with the
filing of returns in respect of Taxes, and provide for certain other matters
relating to Taxes.
NOW, THEREFORE, in consideration of the agreements herein contained and
intending to be legally bound hereby, Ivex and Packaging Dynamics hereby agree
as follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement the following capitalized terms are
defined in this Article I.
Section 1.1 Code. "Code" means the Internal Revenue Code of 1986, as
amended.
Section 1.2 Distribution Agreement. "Distribution Agreement" means the
Distribution Agreement dated as of March 18, 2002 between the parties.
Section 1.3 Distribution Date. "Distribution Date" has the meaning set
forth in Section 1.01 of the Distribution Agreement.
Section 1.4 Distribution. "Distribution" has the meaning set forth in the
Recitals hereof.
Section 1.5 Final Determination. "Final Determination" means the final
resolution of liability for any Tax, which resolution may be for a specific
issue or adjustment or for a taxable period: (i) by Internal Revenue Service
Form 870 or 870-AD (or any successor forms thereto), on the date of acceptance
by or on behalf of the taxpayer, or by a comparable form under the laws of a
state or local Taxing Authority, except that a Form 870 or 870-AD or comparable
form shall not constitute a Final Determination to the extent that it reserves
(whether by its terms or by operation of law) the right of the taxpayer to file
a claim for Refund or the right of the Taxing Authority to assert a further
deficiency in respect of such issue or adjustment or for such taxable period (as
the case may be); (ii) by a decision, judgment, decree, or other order by a
court of competent jurisdiction, which has become final and unappealable; (iii)
by a closing agreement or accepted offer in compromise under Sections 7121 or
7122 of the Code, or a comparable agreement under the laws of a state or local
Taxing Authority; (iv) by any allowance of a Refund or credit in respect of an
overpayment of Tax, but only after the expiration of all periods during which
such Refund may be recovered (including by way of offset) by the jurisdiction
imposing such Tax; or (v) by any other final disposition, including by reason of
the expiration of the applicable statute of limitations or by mutual agreement
of the parties.
Section 1.6 Indemnified Party. "Indemnified Party" means any Person seeking
indemnification pursuant to the provisions of this Agreement.
Section 1.7 Indemnifying Party. "Indemnifying Party" means any party hereto
from which any Indemnified Party is seeking indemnification pursuant to the
provisions of this Agreement.
Section 1.8 IRS. "IRS" means the United States Internal Revenue Service or
any successor thereto, including, but not limited to its agents,
representatives, and attorneys.
Section 1.9 Ivex Consolidated Group. "Ivex Consolidated Group" means Ivex
and, with respect to federal Taxes, the other members of the affiliated group of
corporations (within the meaning of Section 1504(a) of the Code) of which Ivex
was the common parent prior to the Merger, and with respect to state or local
Taxes, any other corporations with which Ivex filed or files a consolidated,
combined or unitary Tax Return with Ivex as the common parent.
Section 1.10 Ivex Consolidated Return Period. "Ivex Consolidated Return
Period" means a taxable period that ends on, before, or includes the
Distribution Date for which a consolidated, combined or unitary (as applicable)
federal, state or local Tax Return is filed or required to be filed by the Ivex
Consolidated Group or by a member thereof (except any Tax Return filed or
required to be filed by Packaging Dynamics with respect to any Post-Distribution
Taxable Period).
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Section 1.11 Ivex Consolidated Return. "Ivex Consolidated Return" has the
meaning set forth in Section 2.1(a) of this Agreement.
Section 1.12 Ivex Consolidated Tax Liability. "Ivex Consolidated Tax
Liability" means the consolidated, combined or unitary Tax Liability of the Ivex
Consolidated Group.
Section 1.13 Merger Agreement. "Merger Agreement" has the meaning given
that term in the Recitals hereof.
Section 1.14 Merger. "Merger" has the meaning given that term in the
Recitals hereof.
Section 1.15 Packaging Dynamics. "Packaging Dynamics" has the meaning set
forth in the preamble and shall include for all purposes of this Agreement its
Subsidiaries.
Section 1.16 PD Letter Agreement. "PD Letter Agreement" has the meaning set
forth in Section 1.01 of the Distribution Agreement.
Section 1.17 Person. "Person" means any individual, partnership, joint
venture, limited liability company, corporation, association, joint stock
company, trust, unincorporated organization or similar entity or a governmental
authority or any department or agency or other unit thereof.
Section 1.18 Post-Distribution Taxable Period. "Post-Distribution Taxable
Period" means a taxable period (and in the case of a Straddle Period, the
portion of a taxable period) that, to the extent it relates to Packaging
Dynamics and its Subsidiaries, begins after midnight on the Distribution Date.
Section 1.19 Pre-Distribution Taxable Period. "Pre-Distribution Taxable
Period" means a taxable period (and in the case of a Straddle Period, the
portion of a taxable period) ending before the Distribution Date or at the end
of the day on the Distribution Date.
Section 1.20 Proceeding. "Proceeding" means any audit or other examination,
judicial or administrative proceeding relating to liability for, or Refunds or
adjustments with respect to, Taxes.
Section 1.21 Refund. "Refund" means any refund of Taxes, including any
reduction in Tax Liabilities by means of a credit, offset, use of an overpayment
or otherwise.
Section 1.22 Straddle Period. "Straddle Period" means any taxable period
that begins on or before and ends after the Distribution Date.
Section 1.23 Subsidiary. "Subsidiary" has the meaning set forth in Section
1.01 of the Distribution Agreement.
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Section 1.24 Tax Benefit. "Tax Benefit" means a reduction in the Tax
Liability of a taxpayer (or of the Ivex Consolidated Group) for any taxable
period. A Tax Benefit shall be deemed to have been realized or received from a
Tax Item in a taxable period only if and to the extent that the Tax Liability of
the taxpayer (or of the Ivex Consolidated Group) for such period, after taking
into account the effect of the Tax Item on the Tax Liability of such taxpayer in
the current period and all prior periods, is more than it would have been if
such Tax Liability were determined without regard to such Tax Item.
Section 1.25 Tax Item. "Tax Item" means any item of income, gain, loss,
deduction or credit, or other attribute that may have the effect of increasing
or decreasing any Tax.
Section 1.26 Tax Liability. "Tax Liability" means all liabilities for
Taxes.
Section 1.27 Tax Return. "Tax Return" means any return, report,
certificate, filing, statement, questionnaire, declaration, form or similar
statement or document (including any related or supporting information or
schedule attached thereto and any information return, amended tax return, claim
for refund or declaration of estimated tax) required to be supplied to, or filed
with, a Taxing Authority or jurisdiction (foreign or domestic) in connection
with the determination, assessment or collection of any Tax or the
administration of any laws, regulations or administrative requirements relating
to any Tax.
Section 1.28 Tax. "Tax" includes any tax, charge, fee, impost, levy or
other assessment imposed by any federal, state, local or foreign Taxing
Authority, including, but not limited to, income, gross receipts, excise,
property, sales, use, license, capital stock, transfer, franchise, payroll,
withholding, social security, value added and other taxes, and any interest,
penalties or additions attributable thereto.
Section 1.29 Taxing Authority. "Taxing Authority" means any governmental
authority or any subdivision, agency, commission or authority thereof or any
quasi-governmental or private body, whether domestic or foreign, having
jurisdiction over the assessment, determination, collection or imposition of any
Tax (including the IRS).
Section 1.30 Treasury Regulation. "Treasury Regulation" means the final and
temporary (but not proposed) income tax regulations promulgated under the Code,
as such regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).
ARTICLE II
PREPARATION AND FILING OF TAX RETURNS; PAYMENT OF TAX
Section 2.1 Tax Returns of Ivex.
(a) General. Except as provided herein, Ivex shall have sole and
exclusive responsibility for the preparation and filing, on a timely basis
of all U.S. Federal income Tax Returns, all combined state income Tax
Returns and all foreign Tax Returns of each member of the Ivex Consolidated
Group for any taxable period that ends on or before
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the Distribution Date (the "Ivex Consolidated Returns") as are
required to be filed. Ivex shall have the right to: determine the
manner in which all such returns shall be filed; make any elections in
connection with any such returns; contest, compromise and settle any
adjustments of deficiency proposed, asserted or assessed in connection
with any such returns; file, pursue, compromise or settle any claim
for refund; and determine whether any refunds to which the Ivex
Consolidated Group is entitled shall be paid by way of a refund or
credit.
(b) Ivex shall allow Packaging Dynamics an opportunity to review
and comment upon such Ivex Consolidated Returns to the extent that
they relate to the Tax Liability of Packaging Dynamics.
(c) To the extent an election, return position, or amendment to a
Tax Return filed by Ivex or a member of the Ivex Consolidated Group
relates to an item of income, gain, loss or deduction of Packaging
Dynamics accruing in a Post-Distribution Taxable Period, Packaging
Dynamics and Ivex shall cooperate with each other reasonably and in
good faith to determine a mutually acceptable election, return
position, or amendment to such Tax Return. Notwithstanding the
foregoing, if such election, return position, or amendment to such Tax
Return solely affects Packaging Dynamics, such election, return
position, or amendment to such Tax Return shall be determined by
Packaging Dynamics in its sole discretion, reasonably and in good
faith.
(d) Packaging Dynamics shall prepare and file all separate
company Tax Returns of Packaging Dynamics for all Straddle Periods.
Ivex and Packaging Dynamics shall execute such consents, elections and
other documents as may be required to provide for the proper filing of
each Tax Return relating to a Straddle Period.
Section 2.2 Tax Liability. Ivex shall be liable for all Taxes due in
respect of all Ivex Consolidated Returns.
Section 2.3 Packaging Dynamics Separate Returns and Tax Liability.
Packaging Dynamics shall be liable for all Taxes of Packaging Dynamics due in
respect of all Post-Distribution Taxable Periods.
ARTICLE III
INDEMNIFICATION FOR TAXES
Section 3.1 Indemnification by Ivex. Except as otherwise provided in this
Article III, Ivex shall indemnify and hold Packaging Dynamics and its successors
and assigns harmless from and against (i) the Ivex Consolidated Tax Liability,
including any Taxes that are imposed on Ivex, any member of the Ivex
Consolidated Group, Packaging Dynamics or any other Person as a result (in whole
or in part) of the Distribution or the Merger, (ii) any liability for Taxes as a
result of Treasury Regulation Section 1.1502-6 or any analogous or similar
provision under state or local law or regulation, of any Person which is or has
ever been a member of the Ivex Consolidated Group, (iii) all Tax Liabilities
that Ivex is required to pay under Article II hereof, and (iv) any costs and
expenses related to any of the foregoing (including, without limitation,
reasonable legal, accounting, appraisal,
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consulting or similar fees and expenses), provided, however, that this Section
3.1 shall not apply to any portion of the Tax Liability of Packaging Dynamics
described in Section 3.2 hereof.
Section 3.2 Indemnification by Packaging Dynamics. In the Post-Distribution
Taxable Period, Packaging Dynamics shall indemnify and hold each member of the
Ivex Consolidated Group (other than Packaging Dynamics) harmless from and
against (i) all Tax Liabilities that Packaging Dynamics is required to pay under
Article II hereof, and (ii) any costs and expenses related to any of the
foregoing (including, without limitation, reasonable legal, accounting,
appraisal, consulting or similar fees and expenses).
ARTICLE IV
TAX CONTESTS
Section 4.1 Notification. Packaging Dynamics shall promptly upon receipt of
notice thereof notify Ivex in writing of any communication with respect to any
pending or threatened Proceeding in connection with a Tax Liability (or an issue
related thereto) for which Ivex may be responsible pursuant to this Agreement.
Packaging Dynamics shall include with such notification (and thereafter provide
to Ivex) a true, correct and complete copy of any written communication, and an
accurate and complete written summary of any oral communication, received by
Packaging Dynamics with respect to any such Proceeding. The failure of Packaging
Dynamics to timely forward such notification or further communication in
accordance with the immediately preceding sentence shall not relieve Ivex of its
obligation to pay such Tax Liability or indemnify Packaging Dynamics therefor,
except and to the extent that the failure to timely forward such notification or
further communication actually prejudices the ability of Ivex to contest such
Tax Liability or increases the amount of such Tax Liability. Similarly, Ivex
shall promptly upon receipt of notice thereof notify Packaging Dynamics in
writing of any communication with respect to any pending or threatened
Proceeding in connection with a Tax Liability (or an issue related thereto) for
which Packaging Dynamics may be responsible pursuant to this Agreement. Ivex
shall include with such notification (and thereafter provide to Packaging
Dynamics) a true, correct and complete copy of any written communication, and an
accurate and complete written summary of any oral communication, received by
Ivex with respect to any such Proceedings. The failure of Ivex to timely forward
such notification or further communication in accordance with the immediately
preceding sentence shall not relieve Packaging Dynamics of its obligation to pay
such Tax Liability or indemnify Ivex therefor, except and to the extent that the
failure to timely forward such notification or further communication actually
prejudices the ability of Packaging Dynamics to contest such Tax Liability or
increases the amount of such Tax Liability.
Section 4.2 Proceedings Involving Ivex. Except as limited in Section
4.2(a), (b), (c), and (d), Ivex (or such member of the Ivex Consolidated Group
as Ivex shall designate) shall be entitled to control, settle, contest and
designate counsel with respect to any Proceeding with respect to a Tax Return
filed by Ivex or a member of the Ivex Consolidated Group or which Proceeding
relates to items for which Ivex is responsible hereunder, and Ivex shall have
the right to resolve any such Proceeding in its sole discretion.
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(a) Ivex shall allow Packaging Dynamics and its counsel to participate at
its own expense in any Proceeding relating to a Tax Return filed for a Ivex
Consolidated Return Period, to the extent that such Proceeding relates to Tax
for which Packaging Dynamics would be liable under Section 2.3 hereof. Packaging
Dynamics shall have the sole authority to determine whether any such Proceeding
relates to Tax for which Packaging Dynamics would be liable under Section 2.3
hereof, which authority shall be exercised by Packaging Dynamics reasonably and
in good faith;
(b) Subject to Section 4.2(a), to the extent an election, return position,
or amendment to a Tax Return filed by Ivex or a member of the Ivex Consolidated
Group relates to an item of income, gain, loss or deduction of Packaging
Dynamics accruing in a Post-Distribution Taxable Period, Packaging Dynamics and
Ivex shall cooperate with each other reasonably and in good faith to determine a
mutually acceptable election, return position, or amendment to such Tax Return.
Notwithstanding the foregoing, if such election, return position, or amendment
to such Tax Return solely affects Packaging Dynamics, such election, return
position, or amendment to such Tax Return shall be determined by Packaging
Dynamics in its sole discretion reasonably and in good faith;
(c) Packaging Dynamics shall be entitled to control, settle, contest and
designate counsel with respect to any Proceeding with respect to a Tax Return
that includes solely Packaging Dynamics and relates solely to items for which
Packaging Dynamics is responsible hereunder or which Proceeding relates to items
for which Ivex is responsible hereunder, and Packaging Dynamics shall have the
right to resolve any such Proceedings in its sole discretion.
(d) Packaging Dynamics shall allow Ivex and its counsel to participate at
its own expense in any Proceeding relating to a Tax Return filed by Packaging
Dynamics, to the extent that such Proceeding relates to Tax for which Ivex would
be liable under this Agreement. Ivex shall have the sole authority to determine
whether any such Proceeding relates to Tax for which Ivex would be liable under
this Agreement, which authority shall be exercised by Ivex reasonably and in
good faith.
ARTICLE V
REFUNDS AND TAX SHARING AGREEMENTS
Section 5.1 Refunds. Except as set forth in this Section 5.1, Ivex shall be
entitled to all Refunds (and any interest thereon received from the applicable
Taxing Authority) in respect of Taxes for all Ivex Consolidated Returns or Taxes
which relate to items for which Ivex is responsible hereunder. Packaging
Dynamics shall be entitled to all Refunds (and any interest thereon received
from the applicable Taxing Authority) in respect of (a) Taxes paid by Packaging
Dynamics for all Post-Distribution Taxable Periods, (b) the Packaging Dynamics
Tax Liability, and (c) any separate returns filed by Packaging Dynamics pursuant
to Section 2.3 hereof. A party receiving a Refund to which another party is
entitled pursuant to this Section 5.1 shall pay the amount to which such other
party is entitled within ten (10) days after such Refund is received or used, as
the case may be. Ivex shall be permitted to file, and Packaging Dynamics shall
fully cooperate with Ivex in
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connection with, any claim for Refund in respect of a Tax for which any member
of the Ivex Consolidated Group is responsible hereunder.
Section 5.2 Tax Sharing Agreements. Any tax sharing agreement (other than
this Agreement) that includes Ivex or any member of the Ivex Consolidated Group,
on the one hand, and Packaging Dynamics on the other hand shall be terminated as
of the Distribution Date and will have no further effect for any taxable year
(whether the current year, a future year, or a past year).
Section 5.3 Compensation Deductions. Ivex (or the appropriate member of the
Ivex Consolidated Group) shall claim all Tax deductions arising by reason of
exercised of options on, or receipt or vesting of restricted shares of, Ivex
stock.
ARTICLE VI
COOPERATION AND EXCHANGE OF INFORMATION
Section 6.1 Cooperation.
(a) Packaging Dynamics, on behalf of itself and each of its affiliates,
agrees to provide Ivex (or its designee), at Ivex's expense, with such
cooperation or information as Ivex (or its designee) reasonably shall request in
connection with the determination of any other calculations described in this
Agreement, the preparation or filing of any Tax Return or claim for Refund, or
the conduct of any Proceeding. Such cooperation and information shall include,
without limitation, (i) promptly forwarding copies of appropriate notices and
forms or other communications (including, without limitation, information
document requests, revenue agent reports and similar reports, notices of
proposed adjustments and notices of deficiency) received from or sent to any
Taxing Authority or any other administrative, judicial or governmental
authority, (ii) upon reasonable notice, providing copies of all relevant Tax
Returns, together with accompanying schedules and related workpapers, documents
relating to rulings or other determinations by taxing authorities, and such
other records concerning the ownership and tax basis of property, or other
relevant information that Packaging Dynamics or its affiliates may possess,
(iii) upon reasonable notice, providing of such additional information and
explanations of documents and information provided under this Agreement
(including statements, certificates and schedules delivered by either party) as
shall be reasonably requested by Ivex (or its designee), (iv) upon reasonable
notice, the providing of any document that may be necessary or reasonably
helpful in connection with the filing of a Tax Return, a claim for a Refund, or
in connection with any Proceeding, including such waivers, consents or powers of
attorney as may be necessary for Ivex to exercise its rights under this
Agreement, and (v) upon reasonable notice, using reasonable efforts to obtain
any documentation from a governmental (a) authority or a third party that may be
necessary or reasonably helpful in connection with any of the foregoing. Upon
reasonable notice, Packaging Dynamics shall make its, or shall cause its
affiliates to make their, employees and facilities available on a mutually
convenient basis to provide explanation of any documents or information provided
hereunder. Any information obtained under this Section 6.1(a) shall be kept
confidential, except as otherwise
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reasonably may be necessary in connection with the filing of Tax Returns or
claims for Refund or in conducting any Proceeding.
(b) Ivex, on behalf of itself and each member of the Ivex Consolidated
Group (including Ivex), agrees to provide Packaging Dynamics (or its designee)
with such cooperation or information as Packaging Dynamics (or its designee), at
Packaging Dynamics' expense, reasonably shall request in connection with the
determination of any other calculations described in this Agreement, the
preparation or filing of any Tax Return or claim for Refund, or the conduct of
any Proceeding. Such cooperation and information shall include, without
limitation and upon reasonable notice, promptly forwarding copies of appropriate
notices and forms or other communications (including, without limitation,
information document requests, revenue agent's reports and similar reports,
notices of proposed adjustments and notices of deficiency) received from or sent
to any Taxing Authority or any other administrative, judicial or governmental
authority, (ii) upon reasonable notice, providing copies of all relevant Tax
Returns, together with accompanying schedules and related workpapers, documents
relating to rulings or other determinations by taxing authorities, and such
other records concerning the ownership and tax basis of property, or other
relevant information that Ivex or any member of the Ivex Consolidated Group may
possess, (iii) upon reasonable notice, the provision of such additional
information and explanations of documents and information provided under this
Agreement (including statements, certificates and schedules delivered by either
party) as shall be reasonably requested by Packaging Dynamics (or its designee),
(iv) upon reasonable notice, the providing of any document that may be necessary
or reasonably helpful in connection with the filing of a Tax Return, a claim for
a Refund, or in connection with any Proceeding, including such waivers, consents
or powers of attorney as may be necessary for Packaging Dynamics to exercise its
rights under this Agreement, and (v) the use of Ivex's reasonable efforts to
obtain any documentation from a governmental authority or a third party that may
be necessary or reasonably helpful in connection with any of the foregoing. Upon
reasonable notice, Ivex shall make, or shall cause each member of the Ivex
Consolidated Group to make, its employees and facilities available on a mutually
convenient basis to provide explanation of any documents or information provided
hereunder. Any information obtained under this Section 6.1(b) shall be kept
confidential, except as otherwise reasonably may be necessary in connection with
the filing of Tax Returns or claims for Refund or in conducting any Proceeding.
Notwithstanding any other provision of this Agreement, neither Packaging
Dynamics, nor any of its affiliates nor any other Person shall have any right to
receive or obtain any information relating to income of Ivex or any of its
affiliates other than information relating to items of income, gain, loss,
deduction, or the Tax Liability of Packaging Dynamics.
Section 6.2 Retention of Records. Packaging Dynamics and Ivex agree to
retain all Tax Returns, related schedules and workpapers, and all material
records and other documents as required under Code Section 6001 and the Treasury
Regulations promulgated thereunder (and any similar provision of state, local,
or foreign Tax law) existing on the date hereof or created in respect of (i) any
taxable period that ends on or before or includes the Distribution Date or (ii)
any taxable period that may be subject to a claim hereunder, until the later of
(x) the expiration of the statute of limitations (including extensions) for the
taxable periods to which such Tax Returns and other documents relate and (y) the
Final
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Determination of any payments that may be required in respect of such taxable
periods under this Agreement. From and after the end of the period described in
the preceding sentence of this Section 6.2, if Packaging Dynamics wishes to
dispose of any such records and documents, then Packaging Dynamics shall provide
written notice thereof to Ivex and shall provide Ivex the opportunity to take
possession of any such records and documents within ninety (90) days after such
notice is delivered; provided, however, that if Ivex does not, within such
ninety (90) day period, confirm its intention to take possession of such records
and documents, Packaging Dynamics may destroy or otherwise dispose of such
records and documents. From and after the end of the period described in the
preceding sentence of this Section 6.2, if Ivex wishes to dispose of any such
records and documents, then Ivex shall provide written notice thereof to
Packaging Dynamics and shall provide Packaging Dynamics the opportunity to take
possession of any such records and documents within ninety (90) days after such
notice is delivered; provided, however, that if Packaging Dynamics does not,
within such ninety (90) day period, confirm its intention to take possession of
such records and documents, Ivex may destroy or otherwise dispose of such
records and documents.
ARTICLE VII
PAYMENTS
Section 7.1 Method of Payment. All payments required by this Agreement
shall be made by (a) wire transfer to the appropriate bank account as may from
time to time be designated by the parties for such purpose; provided that, on
the date of such wire transfer, notice of the transfer is given to the recipient
thereof in accordance with Section 8.4 hereof, or (b) any other method agreed to
by the parties. All payments due under this Agreement shall be deemed to be paid
when available funds are actually received by the payee.
Section 7.2 Interest. Any payment required by this Agreement that is not
made on or before the date required hereunder shall bear interest, from and
after such date through the date of payment, at the underpayment rate as in
effect at such time under Section 6621 of the Code.
Section 7.3 Characterization of Payments. For all tax purposes, the
parties hereto agree to treat, and to cause their respective affiliates to
treat, (i) any payment required by this Agreement as a contribution by Ivex to
Packaging Dynamics or distribution from Packaging Dynamics to Ivex, as the case
may be, occurring immediately prior to the Distribution and (ii) any payment of
interest or non-federal Taxes by or to a Taxing Authority, as taxable to or
deductible by, as the case may be, the party entitled under this Agreement to
receive such payment or required under this Agreement to make such payment, in
either case except as otherwise mandated by applicable law. In the event it is
determined as a result of a Final Determination that any treatment described
under clause (i) or (ii) hereof is not permissible, the payment in question
shall be adjusted to place the parties in the same after-tax position they would
have enjoyed absent such Final Determination. Any payment required by this
Agreement by Packaging Dynamics to Ivex shall be treated as Packaging
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Dynamics' share of the Tax Liability of the Ivex Consolidated Returns, as
determined in accordance with this Agreement and the Treasury Regulations under
Section 1502.
Section 7.4 Time of Indemnification Payment. To the extent an
indemnification obligation arises, the Indemnifying Party shall, upon at least
ten (10) days' prior notice, make payment pursuant to such indemnification
obligation no later than five (5) days prior to the date the Indemnified Party
makes a payment of taxes, interest, or penalties with respect to such Tax
Liability, including a proposed adjustment of taxes or an assessment of tax
deficiency asserted or made by any Taxing Authority that is premised in whole or
part on such Tax Liability, or a payment made in settlement of an asserted tax
deficiency.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Entire Agreement. This Agreement, the Distribution Agreement,
the PD Letter Agreement and the Exhibits and Schedules referenced or attached
hereto and thereto, constitute the entire agreement between the parties with
respect to the subject matter hereof and shall supersede all prior written and
oral and all contemporaneous oral agreements and understandings with respect to
the subject matter hereof.
Section 8.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to its rules regarding conflicts of laws.
Section 8.3 Notices. Any notice, demand, offer, request or other
communication required or permitted to be given by either party pursuant to the
terms of this Agreement shall be in accordance with Section 7.01 of the
Distribution Agreement.
Section 8.4 Amendment. This Agreement may be amended, modified or
supplemented only by a written agreement signed by both of the parties hereto.
Section 8.5 Counterparts. This Agreement and the other documents referred
to herein, may be executed via facsimile or otherwise in counterparts, each of
which shall be deemed to be an original but all of which shall constitute one
and the same agreement.
Section 8.6 Binding Effect; Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective legal
representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement. Except as herein
specifically provided to the contrary, neither party may assign this Agreement
or any rights or obligations hereunder, without the prior written consent of the
other party, and any such assignment shall be void; provided, however, that
either party (or its permitted successive assignees or transferees hereunder)
may assign or transfer this Agreement as a whole without consent to an entity
that succeeds to all or substantially all of the business or assets of such
party to which this Agreement relates. Notwithstanding the foregoing, Ivex may
assign any of its rights or obligations under this Agreement to any
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member of its consolidated group as determined under Section 1504 of the Code it
shall designate or to any purchaser of Ivex; provided, however, that no such
assignment shall relieve Ivex of any obligation to make a payment hereunder to
Packaging Dynamics to the extent such designee fails to make such payment.
Section 8.7 Severability. The parties hereto have negotiated and prepared
the terms of this Agreement in good faith with the intent that each and every
one of the terms, covenants and conditions herein be binding upon and inure to
the benefit of the respective parties. Accordingly, if any one or more of the
terms, provisions, promises, covenants or conditions of this Agreement or the
application thereof to any person or circumstance shall be adjudged to any
extent invalid, unenforceable, void or voidable for any reason whatsoever by a
court of competent jurisdiction, such provision shall be as narrowly construed
as possible, and each and all of the remaining terms, provisions, promises,
covenants and conditions of this Agreement or their application to other persons
or circumstances shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law. To the extent this Agreement
is in violation of applicable law, then the parties agree to negotiate in good
faith to amend the Agreement, to the extent possible consistent with its
purposes, to conform to law.
Section 8.8 Waiver of Breach. The waiver by either party hereto of a breach
or violation of any provision of this Agreement shall not operate as, or be
construed to constitute, a waiver of any subsequent breach of the same or
another provision hereof.
Section 8.9 Amendment and Execution. This Agreement and amendments hereto
shall be in writing and executed in multiple copies via facsimile or otherwise
on behalf of Ivex and Packaging Dynamics by their respective duly authorized
officers and representatives. Each multiple copy shall be deemed an original,
but all multiple copies together shall constitute one and the same instrument.
Section 8.10 Authority. Each of the parties hereto represents to the other
that (a) it has the corporate or other requisite power and authority to execute,
deliver and perform this Agreement, (b) the execution, delivery and performance
of this Agreement by it have been duly authorized by all necessary corporate or
other actions, (c) it has duly and validly executed and delivered this
Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
Section 8.11 Descriptive Headings. The headings contained in this Agreement
and in the table of contents to this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
When a reference is made in this Agreement to an Article or a Section, such
reference shall be to an Article or Section of this Agreement unless otherwise
indicated.
Section 8.12 Gender and Number. Whenever the context of this Agreement
requires, the gender of all words herein shall include the masculine, feminine
and neuter, and the number of all words herein shall include the singular and
plural.
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Section 8.13 Additional Assurances. Except as may be specifically provided
herein to the contrary, the provisions of this Agreement shall be self-
operative and shall not require further agreement by the parties; provided,
however, at the request of either party, the other party shall execute such
additional instruments and take such additional acts as are reasonable, and as
the requesting party may reasonably deem necessary, to effectuate this
Agreement.
Section 8.14 Force Majeure. Neither party shall be liable or deemed to be
in default for any delay or failure in performance under this Agreement or other
interruption of service deemed to result, directly or indirectly, from acts of
God, civil or military authority, acts of public enemy, war, accidents,
explosions, earthquakes, floods, failure of transportation, strikes or other
work interruptions by either party's employees, or any other similar cause
beyond the reasonable control of either party unless such delay or failure in
performance is expressly addressed elsewhere in this Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized on the day and
year first above written.
IVEX PACKAGING CORPORATION PACKAGING DYNAMICS CORPORATION
By: /s/ By: /s/
----------------------------------- ------------------------------------
Name: Name:
Title: Title:
[SIGNATURE PAGE TO TAX SHARING AGREEMENT]
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