TAX INDEMNIFICATION AGREEMENT
This Indemnification Agreement is made and entered into as of
December 18, 1996 between Amscan Holdings, Inc., a Delaware corporation
("AMSCAN"), and Xxxx X. Xxxxxxxxxxx ("XXXXXXXXXXX").
WHEREAS, as of the date hereof, Amscan has acquired all of the
business operations of Amscan Inc., Am-Source, Inc., JCS Realty Corp. and
SSY Realty Corp. (individually, a "SUBCHAPTER S COMPANY" and,
collectively, the "SUBCHAPTER S COMPANIES");
WHEREAS, the Subchapter S Companies elected under Section 1362
of the Internal Revenue Code of 1986, as amended (the "CODE"), to be
treated and operated as Subchapter S corporations;
WHEREAS, Xxxxxxxxxxx was for a number of years the sole
shareholder of Amscan Inc., JCS Realty Corp. and SSY Realty Corp. and
since 1993 owned a 50% interest in Am-Source, Inc.;
NOW, THEREFORE, in consideration of the premises and mutual
provisions hereinafter set forth, the parties hereto hereby agree as
follows:
Article 1. AMSCAN INDEMNITY. Amscan will indemnify Xxxxxxxxxxx
for any United States Federal income tax liability, to the extent such
liability is attributable to a claim by the Internal Revenue Service that
Xxxxxxxxxxx'x income with respect to his ownership of stock in any of the
Subchapter S Companies for any taxable year exceeds the income reported
to Xxxxxxxxxxx by a Subchapter S Company on its Internal Revenue Service
Form K-1 for such taxable year and for any United States Federal income
tax liability of Xxxxxxxxxxx in respect of payments to Xxxxxxxxxxx
pursuant to this Article 1; PROVIDED, HOWEVER, that Amscan's obligation
to indemnify Xxxxxxxxxxx shall be limited to taxes on income which create
a tax benefit to any of the Subchapter S Companies (whether by reason of
deduction, amortization, credit or otherwise) for a taxable year(s) which
end(s) after closing.
Article 2. XXXXXXXXXXX INDEMNITY. Xxxxxxxxxxx will indemnify
Amscan for Amscan's United States Federal income tax liability resulting
from a claim by any taxing authority that a Subchapter S Company was not
properly treated as a Subchapter S corporation for any period in which
such Subchapter S Company filed a tax return on which it claimed that it
was properly treated as a Subchapter S corporation; PROVIDED, HOWEVER,
that Xxxxxxxxxxx'x obligation to indemnify Amscan shall be limited to the
amount that Xxxxxxxxxxx would be entitled to receive as a refund of
United States
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Federal income taxes previously paid with respect to his share of income
generated by a Subchapter S Company.
Article 3. PROCEDURES RELATING TO INDEMNIFICATION. If notice
of a pending or threatened audit is not given to the indemnifying party
promptly after receipt of correspondence from any taxing authority, or in
reasonable detail to apprise the indemnifying party of the nature of the
proposed adjustments, such failure to provide notice promptly shall not
relieve the indemnifying party of its obligations under this agreement,
except to the extent that the failure to notify timely actually
prejudices the indemnifying party's ability to contest such matter. With
respect to any audit, the indemnifying party shall control all
proceedings taken solely in connection with such audit (including,
without limitation, selection of and payment for counsel reasonably
acceptable to indemnitee) and, without limiting the foregoing, may in its
sole discretion pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with any taxing authority with
respect thereto, and may, in its sole discretion, either pay the tax
claimed and xxx for a refund where applicable law permits such refund
suits or contest the audit adjustments in any permissible manner;
PROVIDED, HOWEVER, that if (i) the results of such proceedings, suit,
contest, claim, hearing, compromise or proposed settlement could
reasonably be expected to have a material adverse effect on the assets,
business, operations or financial condition of Amscan or Xxxxxxxxxxx, or
their ability to treat any income or losses in a particular manner for
tax calculation purposes for taxable periods ending after the closing of
the exchange of certain shares of capital stock owned by Xxxxxxxxxxx for
shares of Common Stock of Amscan or (ii) any such proceeding, suit,
contest, claim, hearing, compromise or proposed settlement or procedure
involves taxes other than taxes subject to indemnification, the parties
hereto shall consult and mutually agree on a reasonable good faith basis
upon all aspects of the conduct of such matters. The indemnitee and the
indemnifying party shall cooperate in contesting any audit, which
cooperation shall include, without limitation, the retention and
provision to the indemnifying party of records and information which are
reasonably relevant to such audit and making employees available on a
mutually convenient basis to provide additional information or
explanation of any material provided hereunder or to testify at
proceedings relating to such audit.
Article 4. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York,
without giving effect to principles of conflicts of laws.
Article 5. NOTICES. All notices or other communications
provided for under this Agreement shall be given in writing and shall be
delivered personally or sent by post, telex or facsimile transmission to
the other party at the following address or to such other address as to
which a party has given notice as provided herein.
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If to Amscan:
Amscan Holdings, Inc.
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
If to Xxxxxxxxxxx:
Xxxx X. Xxxxxxxxxxx
c/o Amscan Holdings, Inc.
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Article 6. ASSIGNMENT. Except as otherwise specifically
provided herein, this Agreement and any rights and obligations hereunder
may not be assigned by either party without the prior written approval of
the other party, and any attempted assignment not in compliance with this
Article shall be void and of no effect.
Article 7. COSTS. In any proceeding to enforce any rights
under this Agreement by legal proceedings or otherwise, the prevailing
party shall be reimbursed by the defaulting party for all of the costs
and expenses of the prevailing party in pursuing such proceeding,
including, without limitation, reasonable attorneys' or solicitors' fees.
Article 8. PARTIES NOT PARTNERS. Nothing contained in this
Agreement shall constitute a partnership or other agency agreement
between the parties hereto or their respective subsidiaries or any of
them, nor shall anything contained in this Agreement give any of the
parties hereto or any of the respective subsidiaries the right to bind,
or pledge the credit of, any of the other parties hereto or any of their
respective subsidiaries.
Article 9. ANNUAL REVIEW. This Agreement may be amended by
mutual consultation between the parties, evidenced in a writing signed by
both parties, and the parties agree to engage in mutual consultation in
good faith during each annual period from the date hereof at the request
of any party to maintain in this Agreement the principles of fairness and
equity, and to amend this Agreement accordingly.
Article 10. SEVERABILITY. If any provision in this Agreement
is found by any court or administrative body of competent jurisdiction to
be invalid or unenforceable, the invalidity or unenforceability of such
provision shall not affect the other provisions of this Agreement and all
provisions not affected by such invalidity or unenforceability shall
remain in full force and effect unless the severance of the invalid or
unenforceable provision would unreasonably frustrate the commercial
purposes of this Agreement. The parties hereby agree to attempt to
substitute for any invalid or unenforceable provision a
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valid or enforceable provision which achieves to the greatest extent
possible the economic objectives of the invalid or unenforceable
provision.
Article 11. WAIVER. The waiver by either party of a breach or
default of any of the provisions of this Agreement by the other party
shall not be construed as a waiver of any succeeding breach of the same
or other provisions nor shall any delay or omission on the part of either
party to exercise or avail itself of any right, power or privilege that
it has or may have hereunder operate as a waiver of any breach or default
by the other party.
Article 12. ENTIRE AGREEMENT. This Agreement constitutes the
entire and only Agreement between the parties hereto relating to the
subject matter hereof and overrides and supersedes any prior arrangements
or oral discussions and shall not be modified except in writing by
agreement between the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered as of the day and year first above written.
AMSCAN HOLDINGS, INC.
/s/ Xxxxx X. Xxxxxxxx
By:------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
/s/ Xxxx X. Xxxxxxxxxxx
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Xxxx X. Xxxxxxxxxxx
