EXHIBIT 10.3
TAX SHARING AGREEMENT
TAX SHARING AGREEMENT (the "Agreement") dated as of ___________, 1998 by
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and among IMPERIAL BANCORP, a California corporation ("Imperial"), and IMPERIAL
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FINANCIAL GROUP, INC. ("IFG"), a Delaware corporation and a wholly owned
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subsidiary of IMPERIAL BANK ("Bank"), which is a wholly owned subsidiary of
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Imperial.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS Imperial and its subsidiaries are currently members of the Imperial
Consolidated Group (as defined herein);
WHEREAS the Board of Directors of Imperial has determined that the
interests of Imperial's businesses and shareholders would be best served by
distributing to Imperial shareholders, among other things, Bank's entertainment
and specialty finance lending businesses;
WHEREAS Bank will contribute to IFG certain assets held by Bank and IFG
will assume certain liabilities of Bank (the "Contribution");
WHEREAS Imperial and Bank intend to distribute all the shares of IFG common
stock held by Bank, on a pro rata basis, to the holders of the common stock of
Imperial (the "Distribution");
WHEREAS, the parties intend that for U.S. federal income tax purposes the
Contribution and the Distribution shall qualify as tax-free transactions
pursuant to Sections 351, 368(a)(1)(D) and 355 of the Code (as defined herein);
WHEREAS, the parties wish (i) to provide for the payment of tax liabilities
and entitlement to refunds thereof, allocate responsibility for, and cooperation
in, the filing of Tax Returns and provide for certain other matters relating to
Taxes (as defined herein) and (ii) to set forth certain representations,
warranties, covenants and indemnities relating to the preservation of the tax-
free status of the Contribution and the Distribution.
NOW, THEREFORE, in consideration of the mutual promises and undertakings
contained herein, the parties agree as follows:
1. Definitions.
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(a) General. For purposes of this Agreement, the following terms shall
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have the meanings set forth below:
"Agreement" shall have the meaning set forth in the preamble to this
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Agreement.
"Bank" shall have the meaning set forth in the preamble to this
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Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
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"Combined Return" shall mean a consolidated, combined or unitary income
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Tax Return that includes one or more members of the Imperial Subgroup and one or
more members of the IFG Subgroup.
"Contribution" shall have the meaning set forth in the recitals to this
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Agreement.
"Distribution" shall have the meaning set forth in the recitals to this
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Agreement.
"Distribution Date" shall mean the date on which the Distribution
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occurs.
"IFG" shall have the meaning set forth in the preamble to this
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Agreement.
"IFG Subgroup" shall mean IFG and its present and future direct and
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indirect subsidiaries.
"Imperial" shall have the meaning set forth in the preamble to this
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Agreement.
"Imperial Consolidated Group" shall mean the affiliated group of
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corporations, within the meaning of Section 1504(a) of the Code, of which
Imperial is the common parent, and any member of such group.
"Imperial Subgroup" shall mean each member of the Imperial Consolidated
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Group, other than any member of the IFG Subgroup.
"Indemnified Party" shall mean any Person which is seeking
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indemnification from an Indemnifying Party pursuant to the provisions of this
Agreement.
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"Indemnifying Party" shall mean any Person from which an Indemnified
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Party is seeking indemnification pursuant to the provisions of this Agreement.
"Independent Accounting Firm" shall mean a nationally recognized
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independent accounting firm, jointly selected by IFG and Imperial; or, if they
cannot agree on such accounting firm, both IFG and Imperial shall submit the
name of a nationally recognized independent accounting firm that has not in the
prior two years provided services worth more than $50,000 to IFG, Imperial, or
their respective affiliates, and the "Independent Accounting Firm" shall mean
the firm selected by lot from these two firms.
"IRS" shall mean the U.S. Internal Revenue Service.
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"Overpayment Rate" shall mean the annual rate of interest specified in
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Section 6621(a)(1) of the Code (or similar provision of state, local or foreign
tax law, as applicable) for overpayments of Tax.
"Person" shall mean and includes any individual, partnership, joint
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venture, limited liability company, corporation, association, joint stock
company, trust, unincorporated organization or similar entity.
"Post-Distribution Taxable Period" shall mean a taxable period that
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begins after the Distribution Date.
"Pre-Distribution Taxable Period" shall mean a taxable period that ends
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on or before the Distribution Date.
"Present Value Benefit" shall mean the present value (based on a
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discount rate equal to the short-term applicable federal rate as determined
under Section 1274(d) of the Code at the time of determination, and assuming
that the Indemnified Party will be liable for Taxes at all relevant times at the
maximum marginal rates) of any income tax benefit.
"Proceeding" shall mean any audit or other examination, or any judicial
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or administrative proceeding, relating to liability for or refunds or
adjustments with respect to Taxes.
"Refund" shall mean any refund of Taxes, including any reduction in
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liability for such Taxes by means of a credit, offset or otherwise.
"Ruling Request" shall mean the request by Imperial for an advance
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letter ruling from the IRS with respect to certain Tax
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aspects of the Contribution and the Distribution (and related transactions).
"Straddle Period" shall mean a taxable period that includes, but does
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not end on, the Distribution Date.
"Tax" or "Taxes" shall mean all taxes, charges, fees, imposts, levies
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or other assessments, including, without limitation, all net income, gross
receipts, capital, sales, use, gains, ad valorem, value added, transfer,
franchise, profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp, occupation,
property and estimated taxes, customs duties, fees, assessments and charges of
any kind whatsoever, together with any interest and any penalties, fines,
additions to tax or additional amounts imposed by any taxing authority (domestic
or foreign) and shall include any transferee liability in respect of Taxes.
"Tax Liabilities" shall mean all liabilities for Taxes.
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"Tax Returns" shall mean all reports, returns, declaration forms and
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statements filed or required to be filed with respect to Taxes.
"Transaction Tax Returns" shall mean all reports, returns, declaration
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forms and statements filed or required to be filed with respect to Transaction
Taxes.
"Transaction Taxes" shall mean all sales, use, license, transfer, and
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other similar taxes or fees (including, without limitation, all real estate,
patent, copyright, and trademark transfer taxes and recording fees) incurred in
connection with the Contribution or Distribution.
"Transaction Related Proceeding" shall mean a Proceeding, to the extent
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it relates to the qualification of the Distribution as a tax-free spin-off
pursuant to Section 355 of the Code or to the qualification of the Contribution
as tax-free transactions pursuant to Sections 351 and 368(a)(1)(D) of the Code.
"U.S." shall mean the United States of America.
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(b) Other Definitional Provisions.
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(1) The words "hereof", "herein", and "hereunder" and words of
similar import, when used in this Agreement, shall
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refer to this Agreement as a whole and not to any particular provision of this
Agreement.
(2) The terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
2. Certain Operating Conventions.
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(a) Termination of Taxable Years. For U.S. federal income Tax purposes,
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the taxable year of each member of the IFG Subgroup shall end as of the close of
the Distribution Date. Imperial and IFG shall, unless prohibited by applicable
law, take all action necessary or appropriate to close the taxable period of
each member of the IFG Subgroup for all Tax purposes as of the close of the
Distribution Date.
3. Filing of Tax Returns; Payment of Taxes.
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(a) Tax Returns Required to Be Filed Prior to Distribution Date.
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Imperial shall file or cause to be filed all Tax Returns of Imperial and any
member of the Imperial Consolidated Group required to be filed (after giving
effect to any valid extension of time in which to make such filings) prior to
the Distribution Date and shall pay or cause to be paid all Tax Liability due
with respect to such Tax Returns.
(b) Tax Returns for Pre-Distribution Taxable Periods and Straddle
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Periods. Imperial shall prepare or cause to be prepared, for Pre-Distribution
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Taxable Periods and Straddle Periods, all (A) Combined Returns and (B) Tax
Returns required to be filed on a separate return basis by any member of the
Imperial Consolidated Group, in each case, which Tax Returns are not required to
be (after giving effect to any valid extensions), and are not, filed on or prior
to the Distribution Date and shall pay or cause to be paid all Tax Liability due
with respect to such Tax Returns. With respect to any Tax Returns described in
(B) relating to a member of the IFG Subgroup, Imperial shall timely file such
Tax Returns with the appropriate Tax authority, pursuant to a power of attorney
executed and delivered to Imperial by IFG pursuant to Section 9(e) hereof, and
shall pay or cause to be paid all Tax Liability due with respect to such Tax
Returns.
(c) Tax Returns for Post-Distribution Taxable Periods. IFG shall be
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responsible for (1) preparing and filing or causing to be prepared and filed all
Tax Returns required to be filed by any member of the IFG Subgroup for any Post-
Distribution Taxable
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Period and (2) paying or causing to be paid any Tax Liability due with respect
to such Tax Returns. Imperial shall be responsible for (1) preparing and filing
or causing to be prepared and filed all Tax Returns required to be filed by any
member of the Imperial Subgroup for any Post-Distribution Taxable Period and (2)
paying or causing to be paid any Tax Liability due with respect to such Tax
Returns.
(d) Transaction Taxes. Each of Imperial and IFG shall be responsible
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for preparing and filing or causing to be prepared and filed all Transaction Tax
Returns required to be filed by it and each of Imperial and IFG shall pay or
cause to be paid all Transaction Taxes required to be paid by it.
4. Indemnification for Taxes.
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(a) Indemnification by IFG. IFG shall pay, and shall indemnify and
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hold each member of the Imperial Subgroup and their respective shareholders,
directors, officers, employees, affiliates, agents and successors harmless from
and against, without duplication, (i) all Tax Liabilities which IFG is required
to pay under Section 3, (ii) all Tax Liabilities incurred by any member of the
Imperial Subgroup by reason of the breach by IFG of any of its covenants
hereunder, and (iii) any costs and expenses related to the foregoing (including,
without limitation, reasonable attorneys' fees and expenses).
(b) Liability of IFG Subgroup for Undertaking Certain Transactions.
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Notwithstanding any other provision of this Agreement to the contrary, if, as a
result of any event, action, or failure to act wholly or partially within the
control of any member of the IFG Subgroup (including, without limitation, any
event, action, or failure to act that results in a breach of any representation
or in the inaccuracy of any statement made to the IRS in connection with, the
Ruling Request, or any other event related to the acquisition of IFG stock, any
Taxes are imposed on any member of the Imperial Subgroup with respect to any
action taken pursuant to the Distribution and the transactions related to the
Distribution, including without limitation, the transactions that were intended
to be tax-free under Sections 351, 355 and 368 of the Code, then IFG shall
indemnify and hold harmless each member of the Imperial Subgroup with respect to
any such Taxes on an after-tax basis.
(c) Indemnification by Imperial. Imperial shall pay, and shall
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indemnify and hold each member of the IFG Subgroup and their respective
shareholders, directors, officers, employees, affiliates, agents and successors
harmless from and against, without duplication, (i) all Tax Liabilities which
Imperial is
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required to pay under Section 3, (ii) all Tax Liabilities incurred by any member
of the IFG Subgroup by reason of the breach by Imperial of any of its covenants
hereunder and (iii) any costs and expenses related to the foregoing (including,
without limitation, reasonable attorneys' fees and expenses).
(d) Liability of Imperial Subgroup for Undertaking Certain
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Transactions. Notwithstanding any other provision of this Agreement to the
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contrary, if, as a result of any event, action, or failure to act wholly or
partially within the control of any member of the Imperial Subgroup (including,
without limitation, any event, action, or failure to act that results in a
breach of any representation or in the inaccuracy of any statement made to the
IRS in connection with, the Ruling Request), or any other event related to the
acquisition of Imperial stock, any Taxes are imposed on any member of the IFG
Subgroup with respect to any action taken pursuant to the Distribution and the
transactions related to the Distribution, including without limitation, the
transactions that were intended to be tax-free under Sections 351, 355 and 368
of the Code, then Imperial shall indemnify and hold harmless each member of the
IFG Subgroup with respect to any such Taxes on an after-tax basis.
(e) Payment. If the Indemnifying Party is required to indemnify the
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Indemnified Party pursuant to this Section 4, the Indemnified Party shall submit
its calculations of the amount required to be paid pursuant to this Section 4
(which shall be net of the Present Value Benefit realized or realizable by the
Indemnified Party), showing such calculations in sufficient detail so as to
permit the Indemnifying Party to understand the calculations. Subject to the
following sentence, the Indemnifying Party shall pay to the Indemnified Party,
no later than 10 days after the Indemnifying Party receives the Indemnified
Party's calculations, the amount that the Indemnifying Party is required to pay
the Indemnified Party under this Section 4. If the Indemnifying Party disagrees
with such calculations, it must notify the Indemnified Party of its disagreement
in writing within 10 days of receiving such calculations. Any dispute regarding
such calculations shall be resolved in accordance with Section 8 of this
Agreement.
(f) Time Limits. Any claim under this Section 4 with respect to a Tax
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Liability must be made no later than 30 days after the expiration of the
applicable statute of limitations for assessment of such Tax Liability.
(g) No Duplication. No payments pursuant to this Section 4 shall be
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duplicative of any payments under the Capital Contribution Agreement entered
into as of the date hereof or vice
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versa. To the extent that, without regard to this sentence, any Person has a
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right to be indemnified under both this Agreement and such other agreement with
respect to any Tax Liability, such Person's indemnification right with respect
to such Tax Liability shall be governed exclusively by this Agreement.
5. Carrybacks and Carryovers. In the event that any member of the IFG
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Subgroup realizes any loss, credit or other Tax attribute in any Post-
Distribution Taxable Period, such member may elect to carry back such loss,
credit or Tax attribute to a prior Imperial Consolidated Group taxable year.
Imperial shall cooperate with IFG in seeking from the appropriate taxing
authority any Refund that reasonably would result from such carryback. IFG
shall be entitled to any Refund (or other Tax benefit) realized by a member of
the Imperial Subgroup (including any interest thereon received from such taxing
authority) attributable to such carryback, within 10 days after such Refund (or
other benefit) is received; provided, however, that Imperial shall be entitled
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to Refunds that result from the carryback of a loss, credit or other Tax
attribute by a member of the Imperial Subgroup from a Post-Distribution Taxable
Period to a Pre-Distribution Taxable Period. Except as otherwise provided by
applicable law, if a member of the IFG Subgroup and a member of the Imperial
Subgroup both may carry back a loss or other Tax attribute to the same Imperial
Consolidated Group taxable year, any Refund (or other Tax benefit) resulting
therefrom shall be allocated between IFG and Imperial proportionately based on
the relative amounts of the Refunds (or other Tax benefits) to which the IFG
Subgroup and the Imperial Subgroup, respectively, would have been entitled had
its carrybacks been the only carrybacks to such taxable year. Similarly, IFG
shall be entitled to the benefit, in Post-Distribution Taxable Periods, of any
net operating loss, capital loss, unused investment or foreign tax credit or
other Tax attribute arising in a Pre-Distribution Taxable Period (including with
respect to an affiliated group of which IFG was a member) and properly
apportioned to a member of the IFG Subgroup in accordance with Treasury
Regulation Sections 1.1502-79A and -21T or other applicable law.
6. Refunds of Taxes. Except as provided in Section 5 above, IFG shall be
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entitled to all Refunds relating to Taxes (plus any interest thereon received
with respect thereto from the applicable taxing authority) for which IFG is or
may be liable pursuant to the provisions of Sections 3 and 4 of this Agreement,
and Imperial shall be entitled to all Refunds relating to Taxes (plus any
interest thereon received with respect thereto from the applicable taxing
authority) for which Imperial is or may be
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liable pursuant to the provisions of Sections 3 and 4 of this Agreement. A
party receiving a Refund to which another party is entitled pursuant to this
Agreement shall pay the amount to which such other party is entitled within 10
days after the receipt of the refund (plus any interest thereon received with
respect thereto from the applicable taxing authority).
7. Cooperation; Maintenance and Retention of Records. Imperial and IFG
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shall, and shall cause the members of the Imperial Subgroup and the IFG
Subgroup, respectively, to provide the requesting party with such assistance and
documents as may be reasonably requested by such party in connection with (i)
the preparation of any Tax Return, (ii) the conduct of any Proceeding, (iii) any
matter relating to Taxes of any member of the Imperial Consolidated Group, the
Imperial Subgroup or the IFG Subgroup and (iv) any other matter that is a
subject of this Agreement, and the requesting party shall pay any reasonable
out-of-pocket expenses incurred in connection therewith. Imperial and IFG shall
retain or cause to be retained all Tax Returns, schedules and workpapers, and
all material records or other documents relating thereto, until the expiration
of the statute of limitations (including any waivers or extensions thereof) of
the taxable years to which such Tax Returns and other documents relate or until
the expiration of any additional period that any party reasonably requests, in
writing, with respect to specific material records or documents. A party
intending to destroy any material records or documents shall provide the other
party with reasonable advance notice and the opportunity to copy or take
possession of such records and documents. The parties hereto will notify each
other in writing of any waivers or extensions of the applicable statute of
limitations that may affect the period for which the foregoing records or other
documents must be retained.
8. Disputes. If the parties disagree as to the amount of any payment to
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be made under, or any other matter arising out of, this Agreement, the parties
shall attempt in good faith to resolve such dispute, and any agreed upon amount
shall be paid to the appropriate party. If such dispute is not resolved within
15 days or such other time period as may be set forth in this Agreement, the
parties shall jointly retain the Independent Accounting Firm to resolve the
dispute. The fees of the Independent Accounting Firm shall be borne equally by
IFG and Imperial, and the decision of such Independent Accounting Firm shall be
final and binding on all parties. Following the decision of the Independent
Accounting Firm, the parties shall each take or cause to be taken any action
that is necessary or
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appropriate to implement such decision of the Independent Accounting Firm,
including, without limitation, the prompt payment of underpayments or
overpayments, with interest calculated on such overpayments and underpayments at
the Overpayment Rate from the date such payment was due through the date such
underpayment or overpayment is paid or refunded.
9. Proceedings.
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(a) Notification.
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(1) Imperial shall, promptly upon receipt of notice thereof by any
member of the Imperial Subgroup, notify IFG 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 IFG may be responsible
pursuant to this Agreement. Imperial shall include with such notification a
true, correct and complete copy of any written communication, and an accurate
and complete written summary of any oral communication, so received by a member
of the Imperial Subgroup. The failure of Imperial timely to forward such
notification in accordance with the immediately preceding sentence shall not
relieve IFG of its obligation to pay such Tax Liability or indemnify Imperial
therefor, except to the extent that the failure timely to forward such
notification prejudices the ability of IFG to contest such Tax Liability or
increases the amount of such Tax Liability.
(2) IFG shall, promptly upon receipt of notice thereof by any
member of the IFG Subgroup, notify Imperial 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 Imperial may be responsible
pursuant to this Agreement. IFG shall include with such notification a true,
correct and complete copy of any written communication, and an accurate and
complete written summary of any oral communication, so received by a member of
the IFG Subgroup. The failure of IFG timely to forward such notification in
accordance with the immediately preceding sentence shall not relieve Imperial of
its obligation to pay such Tax Liability or indemnify IFG therefor, except to
the extent that the failure timely to forward such notification prejudices the
ability of Imperial to contest such Tax Liability or increases the amount of
such Tax Liability.
(b) Pre-Distribution Taxable Periods and Straddle Periods. Imperial
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(or such member of the Imperial Subgroup as Imperial shall designate) shall have
the sole right to represent
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the interests of the members of the Imperial Consolidated Group, the IFG
Subgroup and the Imperial Subgroup in any Proceeding relating to Taxes of Pre-
Distribution Taxable Periods and Straddle Periods and to employ counsel of its
choice at its expense.
(c) Post-Distribution Taxable Periods. IFG shall have the sole
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right to represent the interests of the IFG Subgroup (or any member thereof) in
any Proceeding relating to Taxes of the IFG Subgroup (or any member thereof) for
a Post-Distribution Taxable Period and to employ counsel of its choice at its
expense. Imperial shall have the sole right to represent the interests of the
Imperial Subgroup (or any member thereof) in any Proceeding relating to Taxes of
the Imperial Subgroup (or any member thereof) for a Post-Distribution Taxable
Period and to employ counsel of its choice at its expense.
(d) Transaction-Related Proceedings. Imperial and IFG shall
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jointly represent the interests of the Imperial Consolidated Group, the IFG
Subgroup and the Imperial Subgroup in any Transaction-Related Proceedings or any
Proceeding relating to Transaction Taxes.
(e) Power of Attorney. Each member of the IFG Subgroup shall
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execute and deliver to Imperial (or such member of the Imperial Subgroup as
Imperial shall designate) any power of attorney or other document reasonably
requested by Imperial (or such designee) in connection with the filing of Tax
Returns and payment of Taxes as described in Section 3(b) hereof, or any
Proceeding described in Section 9(b) hereof.
10. Payments.
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(a) Interest; Method of Payment. Any payment required by this
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Agreement that is not made on or before the date provided hereunder shall bear
interest after such date at the Overpayment Rate. All payments made pursuant to
this Agreement shall be made in immediately available funds.
(b) Characterization of Payments. For all Tax purposes, the
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parties hereto agree to treat, and to cause their respective affiliates to
treat, (1) any payment required by this Agreement as either a contribution by
Imperial and Bank to IFG or a distribution by IFG to Bank and Imperial, as the
case may be, occurring immediately prior to the Distribution and (2) any payment
of interest or non-federal Taxes by or to a taxing authority as taxable or
deductible, as the case may be, to the party entitled under this Agreement to
retain such payment or
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required under this Agreement to make such payment, in either case except as
otherwise mandated by applicable law.
11. Covenants Relating to Ruling Request.
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(a) Imperial and the Imperial Subgroup. (1) Imperial shall comply
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and shall cause each member of the Imperial Subgroup to comply with and
otherwise not take action inconsistent with each representation and statement
made to the IRS in connection with the Ruling Request and (2) until two years
after the Distribution Date, Imperial will cause Imperial and Bank to remain
engaged in the active conduct of a trade or business, as defined in Section
355(b) of the Code.
(b) IFG and the IFG Subgroup. (1) IFG shall comply and shall cause
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each member of the IFG Subgroup to comply with and otherwise not take action
inconsistent with each representation and statement made to the IRS in
connection with the Ruling Request and (2) until two years after the
Distribution Date, IFG will remain engaged in the active conduct of a trade or
business by reason of owning and operating the business of Entertainment (as
defined in the Ruling Request).
12. Termination of Prior Tax Sharing Agreements. This Agreement shall
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take effect on the Distribution Date and shall replace all other agreements,
whether or not written, in respect of any Taxes between or among any members of
the Imperial Subgroup on the one hand and the IFG Subgroup on the other. All
such replaced agreements shall be cancelled as of the Distribution Date to the
extent they relate to any members of the IFG Subgroup, and any rights or
obligations of any members of the Imperial Subgroup or the IFG Subgroup existing
thereunder thereby shall be fully and finally settled without any payment by any
party thereto.
13. Amendment. This Agreement may be amended, modified or supplemented
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only by a written agreement signed by all of the parties hereto.
14. Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of California, without reference to
choice of law principles, including matters of construction, validity and
performance.
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15. Notices. Notices, requests, permissions, waivers, and other
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communications hereunder shall be in writing and shall be deemed to have been
duly given if signed by the respective persons giving them (in the case of any
corporation the signature shall be by an officer thereof) and delivered by hand
or by telecopy or on the date of receipt indicated on the return receipt if
mailed (registered or certified, return receipt requested, properly addressed
and postage prepaid):
If to Imperial, to:
Imperial Bancorp
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, General Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
Loeb & Loeb LLP
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx., Esq.
If to IFG, to:
Imperial Financial Group, Inc.
0000 Xxxxxxx Xxxx Xxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
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with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Such names and addresses may be changed by notice given in accordance with this
Section 15.
16. Entire Agreement. This Agreement contains the entire understanding
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of the parties hereto with respect to the subject matter contained herein, and
supersedes and cancels all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written, respecting such
subject matter.
17. Headings; References. The article, section and paragraph headings
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contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. All references
herein to "Sections" shall be deemed to be references to Sections hereof unless
otherwise indicated.
18. Counterparts. This Agreement may be executed in one or more
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counterparts and each counterpart shall be deemed to be an original, but all of
which shall constitute one and the same original.
19. Parties in Interest; Assignment; Successor. Neither this Agreement
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nor any of the rights, interest or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or implied,
is intended to confer upon any other Person, other than members of the IFG
Subgroup and the Imperial Subgroup, any rights or remedies under or by reason of
this Agreement.
20. Severability; Enforcement. The invalidity of any portion hereof
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shall not affect the validity, force or effect of the remaining portions hereof.
If it is ever held that any restriction hereunder is too broad to permit
enforcement of such
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restriction to its fullest extent, each party agrees that a court of competent
jurisdiction may enforce such restriction to the maximum extent permitted by
law, and each party hereby consents and agrees that such scope may be judicially
modified accordingly in any proceeding brought to enforce such restriction.
21. Effective Date. This Agreement shall become effective only upon the
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occurrence of the Distribution Date.
IN WITNESS WHEREOF, each of the parties has caused this Tax Sharing
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the day and year first written above.
IMPERIAL BANCORP
By:
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Name:
Title:
IMPERIAL FINANCIAL GROUP, INC.
By:
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Name:
Title:
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