Exhibit 10.14
TAX INDEMNIFICATION AGREEMENT
This Tax Indemnification Agreement is entered into as of December 7, 2005
(this "Agreement") by and among:
(i) Compensation Risk Managers, LLC, a New York limited liability company
("CRM");
(ii) Compensation Risk Managers of California, LLC, a California limited
liability company and a wholly-owned subsidiary of CRM ("CRM CA");
(iii) EIMAR, L.L.C., a New York limited liability company ("Eimar");
(iv) Twin Bridges (Bermuda) Ltd., a Bermuda company ("Twin Bridges"); and
(v) the following individuals and entity, each of whom shall be referred to
herein as an "Existing Member" and together shall be referred to as the
"Existing Members":
Xxxxxx X. Xxxxxx, Xx.;
Xxxxxx X. Xxxxxx, Xx.;
Xxxxxx X. Xxxxxx;
Xxxxxxx Xxxxxxx, Xx.;
Xxxx Xxxxxxx;
Xxxxx X. Xxxxxxx, Xx.;
Xxxxx X. Xxxxxxxx;
Xxxxxxxx Xxxxxxxx;
Xxxxx X. Xxxxxxx; and
Village Holdings, LLC
("Village Holdings").
CRM, CRM CA, Eimar, Twin Bridges and each of the Existing Members are
individually referred to herein as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, each of CRM and Eimar is a limited liability company which is
treated as a partnership for US federal income tax purposes; and,
WHEREAS, the income of each of CRM and Eimar is taxable, on a current
basis, to those Existing Members that hold interests therein, directly or
indirectly, regardless of whether such income has actually been distributed;
and,
WHEREAS, it has been the historic business practice of each of CRM and
Eimar to distribute to those Existing Members that hold interests therein,
directly or indirectly, all amounts taxable to those Existing Members; and,
WHEREAS, Twin Bridges is a controlled foreign corporation for US federal
tax purposes; and,
WHEREAS, a proportionate share of the income of Twin Bridges is taxable to
its 10 percent or greater US shareholders regardless of whether it is
distributed; and,
WHEREAS, it has been the historic business practice of the Parties that an
amount equal to the income of Twin Bridges be distributed proportionately to
Twin Bridges' shareholders, either directly or indirectly by a distribution to
the Existing Members of CRM and Eimar, regardless of whether they are currently
taxable on such income, in order to maintain equity among them; and,
WHEREAS, it has been the historic business practice of CRM CA to make
distributions to CRM to enable CRM to make such distributions to Existing
Members; and for CRM to borrow funds to make distributions when amounts
received from CRM CA were insufficient for such purposes; and,
WHEREAS, CRM and Eimar distributed in the aggregate $1,090,077 to the
Existing Members on November 28, 2005;
WHEREAS, the foregoing amount was equal to the aggregate income of CRM, CRM
CA, Eimar and Twin Bridges from their inception through October 31, 2005 to the
extent that it had not been previously been distributed; and,
WHEREAS, CRM, CRM CA, Eimar and Twin Bridges have agreed to indemnify the
Existing Members for certain of their US federal income tax liabilities
attributable to these entities for the period from November 1, 2005 to the
effective date of the elections of CRM, CRM CA and Eimar to be taxed as
associations for U.S. federal income tax purposes (the "Effective Date");
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants and agreements contained in this Agreement and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the Parties hereto
hereby agree as follows:
ARTICLE I
INDEMNIFICATION
1.1 CRM, CRM CA, Eimar and Twin Bridges agree to make payments (the
"indemnification payments") to each of the Existing Members in an aggregate
amount equal to thirty-five percent (35%) of the excess, if any, of the
aggregate of the net income of CRM, Eimar and Twin Bridges allocable to such
Existing Member as computed for US federal tax income tax purposes over the
aggregate of the net loss of CRM, Eimar and Twin Bridges allocable to such
Existing Member as computed for US federal income tax purposes (provided,
however, that the amount of any net loss of Twin Bridges allocable to an
Existing Member shall be computed on the same basis as the net income of Twin
Bridges would have been allocated to such Existing Member), for the period from
November 1, 2005 through the Effective Date (computed with respect to CRM and
Eimar on a cash basis). The amount that each of CRM, CRM CA, Eimar and Twin
Bridges shall contribute to the indemnification payments shall be determined
through agreement among these parties taking into account Twin Bridges' need to
satisfy its solvency margin and liquidity ratio as set out in the Bermuda
Insurance Xxx 0000, the requirements of the Companies Xxx 0000 and any
contractual obligations. Such indemnification payments shall be made as soon as
practicable after the Effective Date. For purposes of this Section 1.1, payments
to Village Holdings shall be treated as indirect payments to its members.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of CRM, CRM CA, Eimar, Twin Bridges and
Village Holdings. In order to induce each other Party hereto to enter into this
Agreement and to consummate the transactions contemplated hereby, each of CRM,
CRM CA, Eimar, Twin Bridges and Village Holdings hereby represents, severally
and not jointly, to each other Party hereto that:
(a) Organization. Such Party has been duly organized and is validly
existing in good standing under the laws of its jurisdiction of organization.
Such Party has the requisite power and authority to execute and deliver this
Agreement and perform its obligations under this Agreement.
(b) Valid and Binding Obligation. This Agreement has been duly authorized,
executed and delivered by such Party and constitutes a valid and binding
obligation of such Party enforceable against such Party in accordance with its
terms.
(c) Compliance With Applicable Laws and Other Instruments. Neither the
execution nor delivery of, nor the performance of or compliance with, this
Agreement nor the consummation of the transactions contemplated hereby will,
with or without the giving of notice or passage of time, conflict with or result
in a breach of or violation of any of the terms or provisions of, or constitute
a default under, or result in the imposition of any lien or encumbrance upon any
of its assets or properties under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which such Party is a
Party or by which such Party is bound or to which any of the properties or
assets of such Party is subject, nor will any such action result in any
violation of the constituent documents of such Party, or any law, statute or any
order, rule or regulation of any federal, state, provincial, local or foreign
government, court, arbitration, agency or commission or other governmental,
regulatory, judicial or administrative body or authority, including
self-regulating organizations (each, a "Governmental Entity") having
jurisdiction over such Party or the property or assets of such Party.
(d) No Approvals. No consent, authorization, approval, permit or order of
or filing with any Governmental Entity is required under any laws or regulations
in
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connection with the execution and delivery of this Agreement by such Party or
the performance of the transactions contemplated hereby by such Party.
2.2 Representations and Warranties of the Existing Members. In order to
induce each other Party hereto to enter into this Agreement and to consummate
the transactions contemplated hereby, each Existing Member hereby represents and
warrants, severally and not jointly, to each other Party hereto that:
(a) Valid and Binding Obligation. This Agreement has been duly authorized,
executed and delivered by such Party and constitutes a valid and binding
obligation of such Party enforceable against such Party in accordance with its
terms.
(b) Compliance With Applicable Laws and Other Instruments. Neither the
execution nor delivery of, nor the performance of or compliance with, this
Agreement nor the consummation of the transactions contemplated hereby will,
with or without the giving of notice or passage of time, conflict with or result
in a breach of or violation of any of the terms or provisions of, or constitute
a default under, or result in the imposition of any lien or encumbrance upon any
of its assets or properties under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which such Party is a
party or by which such Party is bound or to which any of the properties or
assets of such Party is subject, nor will any such action result in any
violation of any law, statute or any order, rule or regulation of any
Governmental Entity having jurisdiction over such Party or the property or
assets of such Party. Such Party is not subject to any restriction which would
prohibit such Party from entering into or performing such Party's obligations
under this Agreement.
(c) No Approvals. No consent, authorization, approval, permit or order of
or filing with any Governmental Entity is required under any laws or regulations
in connection with the execution and delivery of this Agreement by such Party or
the performance of the transactions contemplated hereby by such Party.
ARTICLE III
GENERAL PROVISIONS
3.1 Entire Agreement. This Agreement constitutes the entire agreement of
the Parties hereto with respect to the matters referred to herein and supersedes
all prior agreements and understandings, written or oral, among the Parties with
respect to the subject matter hereof.
3.2 Further Assurances. At any time and from time to time after the date of
this Agreement, each Party hereto hereby covenants and agrees that such Party
shall execute and deliver such further agreements, assignments and other
documents and instruments, and shall take such further actions, as may be
necessary or advisable to perform such Party's obligations hereunder and to
otherwise carry out the intent and provisions of this Agreement and the
transactions contemplated hereby.
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3.3 Legal Representation; Consents. Xxxxx & XxXxxxxx LLP and Xxxxxxx
Xxxxxxxx Xxxxxx are representing CRM Holdings, Ltd. ("CRM Holdings") in
connection with the transactions contemplated by this Agreement. Each of the
Parties hereto specifically consents to Xxxxx & XxXxxxxx LLP and Xxxxxxx
Xxxxxxxx Xxxxxx representing CRM Holdings in connection with the transactions
contemplated by this Agreement and represents that such Party is relying upon
the advice of such Party's own counsel or advisers in connection with the
transactions contemplated hereby.
3.4 Dispute Resolution. In the event of a disagreement between the Parties
regarding the amount payable under Article I to an Existing Member, such dispute
shall be settled through binding arbitration using three arbitrators. The
Existing Member shall appoint one arbitrator, the entity (or entities) from whom
payment is claimed to be due shall appoint a second arbitrator, and the two
arbitrators so appointed shall appoint a third arbitrator. All arbitrators shall
be certified public accountants. The decision of the majority of such
arbitrators shall be final.
3.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflicts of law principles.
3.6 Jurisdiction. Each of the Parties hereby irrevocably and
unconditionally submits to the exclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
in any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment with respect thereto, and each of the
Parties hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding shall be heard and determined in any such
court. Each of the Parties hereby agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
3.7 Counterparts. This Agreement and any amendments hereto may be executed
in one or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument.
3.8 Amendment and Waiver. This Agreement may not be waived, changed,
amended, modified or terminated except by an instrument in writing signed by, or
on behalf of, all of the Parties to this Agreement. No failure or delay by any
Party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
3.9 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the respective successors, permitted assigns and legal
representatives of the Parties hereto.
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3.10 No Third-Party Beneficiaries. The provisions of this Agreement shall
in no way create any third-party beneficiary rights, directly or indirectly,
under this Agreement.
3.11 Assignment. No Party hereto may assign any of its rights or
obligations under this Agreement without the prior written consent of each of
the other Parties hereto, and any such purported assignment shall be null and
void.
3.12 Survival. All representations, warranties, covenants and agreements
contained in this Agreement shall survive the consummation of the transactions
contemplated by this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed and delivered by their respective duly authorized signatories as of the
date first written above.
COMPENSATION RISK MANAGERS, LLC
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
[Tax Indemnification Agreement]
COMPENSATION RISK MANAGERS OF
CALIFORNIA, LLC
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
[Tax Indemnification Agreement]
EIMAR, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
[Tax Indemnification Agreement]
TWIN BRIDGES (BERMUDA) LTD.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Chairman of the Board
[Tax Indemnification Agreement]
/s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------
Xxxxxx X. Xxxxxx, Xx.
[Tax Indemnification Agreement]
/s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------
Xxxxxx X. Xxxxxx, Xx.
[Tax Indemnification Agreement]
/s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
[Tax Indemnification Agreement]
/s/ Xxxxxxx Xxxxxxx, Xx.
----------------------------
Xxxxxxx Xxxxxxx, Xx.
[Tax Indemnification Agreement]
/s/ Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx
[Tax Indemnification Agreement]
/s/ Xxxxx X. Xxxxxxx, Xx.
----------------------------
Xxxxx X. Xxxxxxx, Xx.
[Tax Indemnification Agreement]
/s/ Xxxxx X. Xxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxx
[Tax Indemnification Agreement]
/s/ Xxxxxxxx Xxxxxxxx
----------------------------
Xxxxxxxx Xxxxxxxx
[Tax Indemnification Agreement]
/s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx
[Tax Indemnification Agreement]
VILLAGE HOLDINGS, LLC
By: /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
Title: Managing Member
[Tax Indemnification Agreement]
