FORM OF TAX MATTERS AGREEMENT by and between COHESANT TECHNOLOGIES INC., on behalf of itself and the members of the Cohesant Group and CIPAR INC., on behalf of itself and the members of the CIPAR Group Dated as of
Exhibit 10.2
FORM OF TAX MATTERS AGREEMENT
by and between
COHESANT TECHNOLOGIES INC.,
on behalf of itself and the members of the Cohesant Group
on behalf of itself and the members of the Cohesant Group
and
XXXXX INC.,
on behalf of itself and the members of the XXXXX Group
on behalf of itself and the members of the XXXXX Group
Dated as of
, 200_
THIS TAX MATTERS AGREEMENT (this “Agreement”) is entered into as of , 200_
by and among Cohesant Technologies Inc., a Delaware corporation (“Cohesant”) on behalf of
Cohesant and the other members of the Cohesant Group, and XXXXX Inc., a Delaware corporation
(“XXXXX”) on behalf of XXXXX and the other members of the XXXXX Group; each a “Party” and
collectively, the “Parties.”
R E C I T A L S:
WHEREAS, Cohesant, acting through its direct and indirect subsidiaries, currently conducts a
number of businesses, including (i) the GlasCraft Business and (ii) the CuraFlo Business;
WHEREAS, as of the date hereof, Cohesant and its direct and indirect domestic subsidiaries are
members of an Affiliated Group, of which Cohesant is the common parent;
WHEREAS, Cohesant has entered into an Agreement and Plan of Merger, dated as of December 3,
2007 (the “Merger Agreement”), among Cohesant, GlasCraft, XXXXX, Graco Inc.
(“Graco”) and Graco Indiana Inc., a wholly-owned subsidiary of Graco (“Acquisition
Sub”), pursuant to which Cohesant will be acquired by Graco by means of a merger of Acquisition
Sub with and into Cohesant with Cohesant as the surviving corporation (the “Acquisition”);
WHEREAS, the Merger Agreement requires that Cohesant be separated (the “Separation”)
into two separate companies such that, at the time of the Acquisition, Cohesant’s sole subsidiary
will be GlasCraft;
WHEREAS, pursuant to the Separation Agreement, dated as of December 3, 2007 (as amended or
otherwise modified from time to time, the “Separation Agreement”), the Parties have agreed
to effect the Separation as follows: (i) Cohesant will contribute the stock of CMI and American
Chemical Company to XXXXX (“Internal Contribution 1”), (ii) Cohesant will have the stock of
CuraFlo BC contributed to CuraFlo Services (“Internal Contribution 2”), (iii) Cohesant will
liquidate and dissolve Cohesant Canada; and (iv) Cohesant will distribute all of the issued and
outstanding shares of XXXXX Common Stock on a pro rata basis to the holders of the outstanding
common stock of Cohesant ( the “Spin-Off”);
WHEREAS, in contemplation of the Separation, pursuant to which the XXXXX Group will cease to
be members of the Affiliated Group of which Cohesant is the parent if (but only if) the Spin-Off
occurs, the Parties have determined to enter into this Agreement, setting forth their agreement
with respect to certain tax matters; and
NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises and covenants
hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
Section 1. Definitions.
Capitalized terms used in this Agreement and not otherwise defined in this Section 1 shall
have the meanings set forth in the Separation Agreement. As used in this Agreement, the following
capitalized terms shall have the following meanings:
“Acquisition Sub” shall have the meaning set forth in the preamble hereto.
“Affiliated Group” means an affiliated group of corporations within the meaning of
section 1504(a)(1) of the Code that files a consolidated return for United States federal Income
Tax purposes.
“After Tax Amount” means any additional amount necessary to reflect the hypothetical
Tax consequences of the receipt or accrual of any payment required to be made under this Agreement
(including payment of an additional amount or amounts hereunder and the effect of the deductions
available for interest paid or accrued and for Taxes such as state and local Income Taxes),
determined by using the highest applicable statutory corporate Income Tax rate (or rates, in the
case of an item that affects more than one Tax) for the relevant taxable period (or portion
thereof).
“Agreement” shall have the meaning set forth in the preamble hereto.
“American Chemical Company” means American Chemical Company, a Missouri corporation.
“Allocated Credit Carryforwards” shall have the meaning set forth in Section 4.04.
“Audit” means any audit, assessment of Taxes, other examination by any Taxing
Authority, proceeding, or appeal of such a proceeding relating to Taxes, whether administrative or
judicial, including proceedings relating to competent authority determinations.
“Business Day” shall have the meaning set forth in the Separation Agreement.
“XXXXX” shall have the meaning set forth in the preamble hereto.
“XXXXX Affiliate” means any Person included in the XXXXX Group.
“XXXXX Business Records” shall have the meaning set forth in Section 8.01(b).
“XXXXX Common Stock” means common stock of XXXXX, $0.001 par value per share.
“XXXXX Group” means XXXXX, CuraFlo Franchising, CuraFlo Services, CMI, American
Chemical Company, CuraFlo BC, CuraFlo Spincast and Cohesant Canada.
“CMI” means Cohesant Materials, Inc., an Oklahoma corporation.
“Code” means the Internal Revenue Code of 1986, as amended.
“Cohesant” shall have the meaning set forth in the preamble hereto.
“Cohesant Affiliate” means any Person included in the Cohesant Group.
“Cohesant Business Records” shall have the meaning set forth in Section 8.01(b).
“Cohesant Canada” means Cohesant Infrastructure and Renewal of Canada, Ltd., a
corporation organized under the laws of Canada.
“Cohesant Group” shall mean Cohesant and GlasCraft.
“Combined Return” means any Tax Return, other than with respect to United States
federal Income Taxes, filed on a consolidated, combined (including nexus combination, worldwide
combination, domestic combination, line of business combination or any other form of combination)
or unitary basis wherein XXXXX (or one or more XXXXX Affiliate) joins in the filing of such Tax
Return (for any taxable period or portion thereof) with Cohesant or one or more Cohesant Affiliate.
“Consolidated Return” means any Tax Return with respect to United States federal
Income Taxes filed on a consolidated basis wherein XXXXX (or one or more XXXXX Affiliate) joins in
the filing of such Tax Return (for any taxable period or portion thereof) with Cohesant or one or
more Cohesant Affiliate.
“Covered Group Taxes” shall have the meaning set forth in Section 3.01(a).
“CuraFlo Business” shall mean the Business, as such term is defined in the Separation
Agreement.
“CuraFlo BC” means CuraFlo of British Columbia Ltd., a corporation organized under the
laws of British Columbia.
“CuraFlo Franchising” means CuraFlo Franchising Inc., a Delaware corporation, formerly
known as XXXXX Franchising, Inc.
“CuraFlo Services” means CuraFlo Services Inc., a Delaware corporation and wholly
owned subsidiary of XXXXX, formerly known as XXXXX Services, Inc.
“CuraFlo Spincast” means CuraFlo Spincast Services, Inc., a Delaware corporation.
“Deferred Intercompany Item” shall mean any income, gain, deduction, or loss from
transactions between members of the same Affiliated Group that is deferred for United States
federal Income Tax purposes under the principles in Treasury Regulations section 1.1502-13, or any
similar provision under state, local, or foreign law.
“Distribution Taxes” means any Taxes (including liability to stockholders and the cost
of defending against the imposition of such Taxes and other liabilities) of any member of the
Cohesant Group and the XXXXX Group arising from or attributable to the transactions contemplated by
the Separation Agreement, including but not limited to (a) any failure of the Spin-Off to
constitute a distribution eligible for nonrecognition under Section 355(a) of the Code, (b) any
failure of Internal Contribution 1 and/or Internal Contribution 2 to qualify for nonrecognition
under Section 351(a) of the Code, (c) any failure of Internal Contribution 2 to be fully exempt
from Taxation in Canada, and (d) any failure of the liquidation and dissolution of Cohesant Canada
to be fully exempt from Taxation in the U.S. and in Canada. Notwithstanding any other provision of
this Agreement, Distribution Taxes shall include all Taxes arising from or attributable to (i) any
excess loss accounts or deferred intercompany transactions taken into account under Section 1502 of
the Code or Treasury Regulations issued thereunder and any similar items taken into account under
state, local or foreign Tax laws as a result of the transactions contemplated by the Separation
Agreement, (ii) Sections 301(c)(3), 311(b), or 367 of the Code or Treasury Regulations issued
thereunder, and any similar provisions of state, local and foreign Tax law as a result of the
transactions contemplated by the Separation Agreement, and (iii) recapture of any “dual
consolidated losses” attributable to any member of the Cohesant Affiliated Group within the meaning
of Section 1503 of the Code. Any Income Tax referred to in this definition of Distribution Taxes
shall be determined using the highest applicable statutory corporate Income Tax rate (or rates, in
the case of an item that affects more than one Tax) for the relevant taxable period (or portion
thereof) taking into account deductions for interest paid or accrued and other related
Taxes, such as state and local Taxes.
“Effective Time” shall have the meaning set forth in the Separation Agreement.
“Filing Party” shall have the meaning set forth in Section 7.01.
“Final Determination” means the final resolution of liability for any Tax for any
taxable period, by or as a result of (i) a final and unappealable decision, judgment, decree or
other order by any court of competent jurisdiction; (ii) a final settlement with the IRS, a closing
agreement or accepted offer in compromise under section 7121 or section 7122 of the Code, or a
comparable agreement under the laws of other jurisdictions, which resolves the entire Tax liability
for any taxable period; (iii) 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 by the
jurisdiction imposing the Tax; or (iv) any other final disposition, including by reason of the
expiration of the applicable statute of limitations.
“GlasCraft” means GlasCraft Inc., an Indiana corporation.
“GlasCraft Business” shall have the meaning provided such term in the Separation
Agreement.
“GlasCraft Separate Group Basis” means, in the case of any Covered Group Taxes, the
amount of such Taxes that would have been due if the underlying group consisted solely of GlasCraft
and did not include Cohesant or any members of the XXXXX Group and computed (i) by taking into
account elections and accounting methods actually used in computing such Taxes for such year, (ii)
with appropriate adjustments to take into account the application of Treasury Regulations Section
1.1502-13 or similar provisions of state and local Tax law to any intercompany transactions between
members of the XXXXX Group and Cohesant (on one hand) and GlasCraft (on the other hand), (iii)
consistent with past practice (including past practices of allocating state and local unitary Taxes
and expenses to an entity if that entity caused the filing of a combined, consolidated or unitary
Tax Return) and (iv) with such other adjustments as are contemplated by this Agreement;
provided, however, that Tax liability for an entity with nexus in a combined return state
shall be based on that entity’s relative apportionment percentage of the total apportionment
percentage of the actual combined group.
“Income Tax” means any federal, state, local or foreign Tax determined (in whole or in
part) by reference to net income, net worth, gross receipts, or capital, or any such Taxes imposed
in lieu of such a Tax, including, without limitation, any franchise Tax.
“Income Tax Return” means any Tax Return relating to any Income Tax.
“Internal Contribution 1” shall have the meaning set forth in the preamble hereto.
“Internal Contribution 2” shall have the meaning set forth in the preamble hereto.
“IRS” means the United States Internal Revenue Service or any successor thereto,
including its agents, representatives, and attorneys.
“Net Intercompany Tax Amount” shall have the meaning set forth in Section 8.01(b).
“Owed Party” shall have the meaning set forth in Section 6.05.
“Owing Party” shall have the meaning set forth in Section 6.05.
“Parties” shall have the meaning set forth in the preamble hereto.
“Payment Period” shall have the meaning set forth in Section 6.05(e).
“Person” shall have the meaning set forth in the Separation Agreement.
“Post-Spin-Off Period” means any Taxable year or other Taxable period beginning after
the Spin-Off Date and, in the case of any Taxable year or other Taxable period that begins on or
before and ends after the Spin-Off Date, that part of the Taxable year or other Taxable period that
begins at the beginning of the day after the Spin-Off Date.
“Pre-Spin-Off Period” means any Taxable year or other Taxable period that ends on or
before the close of the Spin-Off Date and, in the case of any Taxable year or other Taxable period
that begins on or before and ends after the Spin-Off Date, that part of the Taxable year or other
Taxable period through the close of the Spin-Off Date.
“Separation” shall have the meaning set forth in the preamble hereto.
“Separation Agreement” shall have the meaning set forth in the preamble hereto.
“Sole Responsibility Item” means any Tax Item for which the non-Filing Party has the
entire economic liability under this Agreement.
“Spin-Off” shall have the meaning set forth in the preamble hereto.
“Spin-Off Date” means the effective date of the Spin-Off transaction.
“Tax Asset” means any Tax Item that has been recognized for Tax purposes, but has not
been realized during the taxable period, and that could reduce a Tax in another taxable period,
including a net operating loss, net capital loss, investment tax credit, foreign tax credit,
charitable deduction, or credit related to alternative minimum tax or any other Tax credit.
“Tax Benefit” means a reduction in the Tax liability (or increase in refund or credit
or any item of deduction or expense) of a taxpayer (or of the Affiliated Group, or similar group of
entities as defined under corresponding provisions of the laws of any other jurisdiction, of which
it is a member) for any taxable period. Except as otherwise provided in this Agreement, 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 Affiliated Group, or similar
group of entities as defined under corresponding provisions of the laws of any other jurisdiction,
of which it is a member) for such period, after taking into account the effect of the Tax Item on
the Tax liability of such taxpayer (or of the Affiliated Group, or similar group of entities as
defined under corresponding provisions of the laws of any other jurisdiction, of which it is a
member) in the current period and all prior periods, is less than it would have been had such Tax
liability been determined without regard to such Tax Item.
“Tax Detriment” means an increase in the Tax liability (or reduction in refund or
credit or any item of deduction or expense) of a taxpayer (or of the Affiliated Group, or similar
group of entities as defined under corresponding provisions of the laws of any other jurisdiction,
of which it is a member) for any taxable
period. Except as otherwise provided in this Agreement, a Tax Detriment shall be deemed to have
been realized or incurred from a Tax Item in a taxable period only if and to the extent that the
Tax liability of the taxpayer (or of the Affiliated Group, or similar group of entities as defined
under corresponding provisions of the laws of any other jurisdiction, of which it is a member) for
such period, after taking into account the effect of the Tax Item on the Tax liability of such
taxpayer (or of the Affiliated Group, or similar group of entities as defined under corresponding
provisions of the laws of any other jurisdiction, of which it is a member) in the current period
and all prior periods, is more than it would have been had such Tax liability been determined
without regard to such Tax Item.
“Tax Item” means any item of income, gain, loss, deduction, expense or credit, or
other attribute that may have the effect of increasing or decreasing any Tax.
“Tax Return” means any return, report, certificate, 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 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.
“Tax Material” shall have the meaning set forth in Section 8.01(a).
“Taxes” means all federal, state, local or foreign taxes, charges, fees, duties,
levies, imposts, rates or other assessments, including income, gross receipts, payroll, employment,
unemployment, withholding, social security, disability, commercial activity, excise, real property,
personal property, sales, use, license, capital stock, transfer, registration, franchise, value
added, estimated or any other taxes of any kind whatsoever, (including any interest, penalties or
additions attributable thereto, whether disputed or not and including any liability as a result of
being a person required by law to withhold taxes imposed on another person) and a “Tax” shall mean
any one of such Taxes.
“Taxing Authority” means any governmental authority or any subdivision, agency,
commission, or authority thereof or any quasi-governmental or private body having jurisdiction over
the assessment, determination, collection or imposition of any Tax (including the IRS).
Section 2. Preparation and Filing of Tax Returns.
2.01. Cohesant’s Responsibility. Subject to the other applicable provisions of this
Agreement and consistent with past practices, Cohesant shall have sole and exclusive responsibility
for the preparation and filing of the following Tax Returns each of which is listed on Schedule
2.01 attached hereto:
(a) all Consolidated Returns and all Combined Returns for any taxable period not filed by the
Spin-Off Date;
(b) all Tax Returns (other than Consolidated Returns and Combined Returns) with respect to any
Cohesant Affiliate for any taxable period;
(c) all Tax Returns with respect to XXXXX or any XXXXX Affiliate that are required to be filed
(taking into account any extension of time which has been requested or received) on or prior to the
Spin-Off Date and which have been, under past practices, prepared and filed by Cohesant.
2.02. XXXXX’x Responsibility. XXXXX shall have sole and exclusive responsibility for
the preparation and filing of all Tax Returns (other than Consolidated Returns and Combined
Returns) with respect to XXXXX and any XXXXX Affiliate due after the Spin-Off Date, each of which
is listed on Schedule 2.02 attached hereto.
2.03. Agent. Subject to the other applicable provisions of this Agreement, XXXXX
hereby irrevocably designates, and agrees to cause each XXXXX Affiliate to so designate, Cohesant
as its sole and exclusive agent and attorney-in-fact to take such action (including execution of
documents) as Cohesant, acting in good faith, may deem appropriate in any and all matters
(including Audits) relating to any Tax Return described in Section 2.01(a) and (b).
2.04. Manner of Tax Return Preparation.
(a) Unless otherwise required by a Taxing Authority, the Parties hereby agree to prepare and
file all Tax Returns, and to take all other actions, in a manner consistent with this Agreement and
the past practices of the Cohesant Group and the XXXXX Group including obtaining available
extensions (to the extent consistent with applicable law). All Tax Returns shall be filed on a
timely basis (taking into account applicable extensions) by the Party responsible for filing such
returns under this Agreement.
(b) With respect to any Consolidated Return or Combined Return: (1) XXXXX shall provide
Cohesant with a pro forma draft of the portion of such Tax Return that reflects XXXXX and any XXXXX
Affiliate, as applicable, at least sixty (60) days prior to the due date (with applicable
extensions) for the filing of such Tax Return; (2) within thirty (30) days after receiving the pro
forma draft Tax Returns, Cohesant shall review the drafts and provide comments and questions to
XXXXX (in writing if requested by XXXXX); (3) XXXXX shall cooperate with Cohesant by responding (in
writing if requested) and resolving the comments and questions from Cohesant within ten (10) days
of receiving comments and questions from Cohesant.
Nothing in this Section 2.04(b) shall alter the sole and exclusive responsibility for the
preparation and filing of Tax Returns under Sections 2.01 and 2.02. If XXXXX has not responded to
the Cohesant comments and questions in respect of the pro forma Tax Return in a timely manner
pursuant to Section 2.04(b) above, Cohesant shall file the Consolidated or Combined Tax Return
reporting all Tax Items in the manner as it deems appropriate. In the case of a dispute regarding
the reporting of any Tax Item which has not been resolved by the due date (with applicable
extensions) for the filing of any Tax Return, Cohesant shall file such Consolidated or Combined Tax
Return reporting all Tax Items in the manner as it deems appropriate; provided, however,
that Cohesant agrees that it will thereafter file an amended Tax Return, if necessary, reporting
any material disputed Tax Item in the manner determined under Section 8.02, and any other Tax Item
as agreed upon by Cohesant and XXXXX.
Section 3. Liability for Taxes.
3.01. Liability for Pre-Spin-Off Period Taxes. Liability for all Taxes related to
Pre-Spin-Off Periods (including, without limitation, additional Taxes resulting from an Audit or
other redetermination of Tax Items), other than Taxes described in Section 4, shall be allocated as
follows:
(a) With respect to any Taxes imposed on a Consolidated Return or a Combined Return
(“Covered Group Taxes”), the portion of such Taxes allocable to the Cohesant Group shall be
computed on a GlasCraft Separate Group Basis. The remaining portion of Covered Group Taxes shall
be allocable to the XXXXX Group.
(b) With respect to any Tax other than Covered Group Taxes addressed in Section 3.01(a)
above, the Cohesant Group shall be responsible for only such Taxes for which GlasCraft has the
primary liability to the Taxing Authority under applicable law. All other Taxes related to
Pre-Spin Off Periods, other than Covered Group Taxes addressed in Section 3.01(a) above, shall be
allocable solely to the XXXXX Group.
3.02. Liability for Post-Spin-Off Period Taxes. With respect to Post-Spin-Off
Periods, Cohesant and any Cohesant Affiliate and XXXXX and any XXXXX Affiliate shall each be liable
for their respective Taxes, except as provided in Section 4.
3.03. [Intentionally omitted].
3.04. Payment of Tax Liability. If one Party is liable or responsible for Taxes,
under Section 3.01 or 3.02, with respect to Tax Returns for which another party is responsible for
preparing and/or filing, or with respect to Taxes that are paid by another Party, then the liable
or responsible Party shall pay the Taxes (or a reimbursement of such Taxes) to the other Party
pursuant to Section 6.05.
3.05. Computation. Consistent with Section 3.01, Cohesant shall provide XXXXX with a
written calculation in reasonable detail (including copies of all work sheets and other materials
used in preparation thereof) setting forth the amount of any Tax liability of XXXXX for which XXXXX
is liable under Section 3.01. XXXXX shall have the right to review and comment on such
calculation. Any dispute with respect to such calculation shall be resolved pursuant to Section
8.02; provided, however, that, notwithstanding any dispute with respect to any such
calculation, in no event shall any payment attributable to the amount of any Tax liability of the
XXXXX Group be paid later than the date provided in Section 6.
Section 4. Distribution Taxes.
4.01. Distribution Taxes. Notwithstanding anything herein or otherwise to the
contrary, the XXXXX Group shall be solely liable for, and shall indemnify and hold Cohesant and any
Cohesant Affiliate harmless from and against, any and all Distribution Taxes.
4.02. Carrybacks. With respect to any Tax Asset incurred by the XXXXX Group in a
Post-Spin-Off Period, XXXXX shall not, and shall cause each member of the XXXXX Group to not, elect
to carry back Tax Assets to a Pre-Spin-Off Period.
4.03. Continuing Covenants.
(a) In General. Each of Cohesant and XXXXX agrees (1) not to take any action (or cause
its Affiliates to take any action) reasonably expected to result in an increased Tax liability to
the other or the other’s Affiliates, a reduction in a Tax Asset of the other, or an increased
liability to the other under this Agreement, and (2) to take any action (and cause its Affiliates
to take any action) reasonably requested by the other that would reasonably be expected to result
in a Tax Benefit or avoid a Tax Detriment to the other or the other’s Affiliates, provided, in
either such case, that the taking or refraining to take such action does not result in any
additional cost not fully compensated for by the other Party or any other adverse effect to such
Party. The Parties hereby acknowledge that the preceding sentence is not intended to limit, and
therefore shall not apply to, the rights of the Parties with respect to matters otherwise covered
by this Agreement.
(b) Cooperation. The Parties agree that, at the request of the other Party, the
Parties shall cooperate fully the execution of any documents that may be necessary or reasonably
helpful in connection with undertaking the transactions contemplated by this Agreement.
4.04. Allocation of Tax Assets. In connection with the Spin-Off, Cohesant and XXXXX
shall cooperate in determining the allocation of any Tax Assets among Cohesant, each Cohesant
Affiliate, XXXXX, and each XXXXX Affiliate. The allocations will be made in accordance with
applicable tax laws. The Parties hereby agree that in the absence of controlling legal authority
or unless otherwise provided under this Agreement, Tax Assets shall be allocated to the legal
entity that created such Tax Assets.
Section 5. Indemnification.
5.01. Cohesant Indemnity. Cohesant shall, and shall cause the Cohesant Affiliates, to
indemnify XXXXX and each XXXXX Affiliate and their respective directors, officers, and employees,
and hold them harmless from and against any and all Taxes for which Cohesant or any Cohesant
Affiliate is liable under this Agreement (including, without limitation, Taxes allocated to
Cohesant pursuant to Sections 3.01 and 3.02) and any loss, cost, damage, fine, penalty, or other
expense of any kind, including reasonable attorneys’ fees and costs, that is attributable to, or
results from, the failure of Cohesant, any Cohesant Affiliate or any director, officer, or employee
to make any payment required to be made under this Agreement or from the failure of Cohesant, any
Cohesant Affiliate or any director, officer, or employee to provide complete and accurate
information in connection with the preparation of any Tax Return. Cohesant and Cohesant Affiliates
shall have no liability to XXXXX or any XXXXX Affiliate or their respective directors, officers, or
employees with respect to Taxes allocated to the XXXXX Group under this Agreement.
5.02. XXXXX Indemnity. XXXXX shall, and shall cause the XXXXX Affiliates, to indemnify
Cohesant and each Cohesant Affiliate and their respective directors, officers, and employees, and
hold them harmless from and against any and all Taxes for which XXXXX or any XXXXX Affiliate is
liable under this Agreement (including, without limitation, Distribution Taxes and Taxes allocated
to XXXXX pursuant to Sections 3.01 and 3.02) and any loss, cost, damage, fine, penalty, or other
expense of any kind, including reasonable attorneys’ fees and costs, that is attributable to, or
results from, the failure of XXXXX, any XXXXX Affiliate or any director, officer, or employee to
make any payment required to be made under this Agreement or from the failure of XXXXX, any XXXXX
Affiliate or any director, officer or employee to provide complete and accurate information in
connection with the preparation of any Tax Return. XXXXX and XXXXX Affiliates shall have no
liability to Cohesant or any Cohesant Affiliate or their respective directors, officers, or
employees with respect to Taxes allocated to the Cohesant Group under this Agreement.
Section 6. Payments.
6.01. Liabilities for Taxes Under the Tax Sharing Agreement. Schedule 6.01 attached
hereto sets forth the net obligations of the Parties under the tax sharing agreement or arrangement
with respect to Taxes for all Pre-Spin-Off Periods, including, without limitation, any Distribution
Taxes and Taxes accrued through the close of business on the Spin-Off Date (“Net Intercompany
Tax Amount”). On or prior to the Spin-Off Date, the Net Intercompany Tax Amount shall be paid
to the appropriate Party as described in Section 2.01(e) of the Separation Agreement.
6.02. True-Up Payments. Not later than thirty (30) Business Days after the filing of
a Consolidated or Combined Tax Return, XXXXX shall, and shall cause XXXXX Affiliates, to pay to
Cohesant, or Cohesant shall, and shall cause Cohesant Affiliates, to pay to XXXXX, as appropriate,
an amount equal to the difference, if any, between the Tax liability of the XXXXX Group and the
reserve for Taxes for such period taken into account in calculating the Net Intercompany Tax Amount
under Section 6.01.
6.03. Redetermination Amounts. In the event of a redetermination of any Tax Item
reflected on any
Consolidated Return or Combined Return, as a result of a refund or credit of Taxes paid, a Final
Determination or any settlement or compromise with any Taxing Authority which in any such case
would affect the Tax liability of XXXXX and any XXXXX Affiliate, Cohesant shall prepare a revised
pro forma Tax Return in accordance with Section 2.01(a) for the relevant taxable period reflecting
the redetermination of such Tax Item as a result of such refund, Final Determination, settlement,
or compromise. XXXXX shall pay to Cohesant, or Cohesant shall pay to XXXXX, as appropriate, an
amount equal to the difference, if any, between the Tax liability of the XXXXX Group reflected on
such revised pro forma Tax Return and the Tax liability of the XXXXX Group for such period as
originally computed pursuant to this Agreement.
6.04. Payments of Refunds and Credits. If one Party receives a refund or credit of
any Tax to which the other Party is entitled pursuant to Section 3.04, the Party receiving such
refund or credit shall pay to the other Party the amount of such refund or credit pursuant to
Section 6.05.
6.05. Payments Under This Agreement. In the event that one Party (the “Owing
Party”) is required to make a payment to another Party (the
“Owed Party”) pursuant to
this Agreement, then such payments shall be made according to this Section 6.05.
(a) In General. All payments shall be made to the Owed Party or to the appropriate
Taxing Authority as specified by the Owed Party within the time prescribed for payment in this
Agreement, or if no period is prescribed, within twenty (20) days after delivery of written notice
of payment owing together with a computation of the amounts due.
(b) Treatment of Payments. Unless otherwise required by any Final Determination, the
Parties agree that any payments made by one Party to another Party pursuant to this Agreement
(other than (i) payments of After Tax Amounts pursuant to Section 6.05(d), and (ii) payments of
interest pursuant to Section 6.05(e)) shall be treated for all Tax purposes as nontaxable payments
(dividend distributions or capital contributions, as the case may be) made immediately prior to the
Spin-Off and, accordingly, as not includible in the taxable income of the recipient or as
deductible by the payor.
(c) Prompt Performance. All actions required to be taken (including payments) by any
Party under this Agreement shall be performed within the time prescribed for performance in this
Agreement, or if no period is prescribed, such actions shall be performed promptly.
(d) After Tax Amounts. If pursuant to a Final Determination it is determined that the
receipt or accrual of any payment made under this Agreement (other than payments of interest
pursuant to Section 6.05(e)) is subject to any Tax, the Party making such payment shall be liable
for (a) the After Tax Amount with respect to such payment and (b) interest at the rate described in
Section 6.05(e) on the amount of such Tax from the date such Tax accrues with respect to the
receipt of such payment through the date of payment of such After Tax Amount. A Party making a
demand for a payment pursuant to this Agreement and for a payment of an After Tax Amount with
respect to such payment shall separately specify and compute such After Tax Amount. However, a
Party may choose not to specify an After Tax Amount in a demand for payment pursuant to this
Agreement without thereby being deemed to have waived its right subsequently to demand an After Tax
Amount with respect to such payment.
(e) Interest. Payments pursuant to this Agreement that are not made within the period
prescribed in this Agreement (the “Payment Period”) shall bear interest for the period from
and including the date immediately following the last date of the Payment Period through and
including the date of payment at a per annum rate equal to the prime rate plus two percent (2%) (or
the maximum legal rate whichever is lower). Such interest will be payable at the same time as the
payment to which it relates and shall be calculated on
the basis of a year of three hundred sixty-five (365) days and the actual number of days for which
due.
Section 7. Tax Proceedings.
7.01. In General. Except as otherwise provided in this Agreement, the Party
responsible for preparing and filing a Tax Return pursuant to Section 2 (the “Filing
Party”) shall have the exclusive right, in its sole discretion, to control, contest, and
represent the interests of Cohesant, any Cohesant Affiliate, XXXXX, or any XXXXX Affiliate in any
Audit relating to such Tax Return and to resolve, settle, or agree to any deficiency, claim, or
adjustment proposed, asserted or assessed in connection with or as a result of any such Audit. The
Filing Party’s rights shall extend to any matter pertaining to the management and control of an
Audit, including execution of waivers, choice of forum, scheduling of conferences, and the
resolution of any Tax Item. Any costs incurred in handling, settling, or contesting an Audit shall
be borne by the Filing Party.
7.02. Participation of non-Filing Party. Except as otherwise provided in this
Agreement, the non-Filing Party shall, if requested, be kept reasonably informed on the status of
any Audit involving a Sole Responsibility Item. The Filing Party shall not settle any Audit it
controls concerning any such Sole Responsibility Item if the aggregate of such Items settled is
more than $25,000 without the prior written consent of the non-Filing Party, and such consent shall
not be unreasonably withheld.
7.03. Notice. Within thirty (30) days after a Party becomes aware of the existence of
a Tax issue that is reasonably expected to give rise to an indemnification obligation under this
Agreement, such Party shall give notice to the other Party of such issue (such notice shall contain
factual information, to the extent known, describing any asserted tax liability in reasonable
detail), and shall forward to the other Party copies of all notices and material communications
with any Taxing Authority relating to such issue. Notwithstanding any provision in Section 8.06 to
the contrary, if a Party to this Agreement fails to provide the other Party notice as required by
this Section 7.03, and the failure results in a material economic detriment to the other Party,
then any amount which the other Party is otherwise required to pay pursuant to this Agreement shall
be reduced by the amount of such detriment.
Section 8. Miscellaneous.
8.01. Cooperation and Exchange of Information.
(a) Cooperation. The Parties shall each cooperate fully (and each shall cause its
respective Affiliates to cooperate fully) with all reasonable requests from another Party for
information, data files, and materials not otherwise available to the requesting Party in
connection with the preparation and filing of Tax Returns, claims for refund, and Audits concerning
issues or other matters covered by this Agreement or in connection with the determination of a
liability for Taxes or a right to a refund of Taxes. Such cooperation shall include:
(i) the retention until the expiration of the applicable statute of limitations, and the
provision upon request, of copies of all Tax Returns, books, records (including information
regarding ownership and Tax basis of property), documentation, and other information relating to
the Tax Returns, including accompanying schedules, related work papers, and documents relating to
rulings or other determinations by Taxing Authorities (collectively, “Tax Material”),
provided, however, that no such retention obligation shall exist to the extent such
Tax Material has previously been provided from one Party to the other Party;
(ii) the execution of any document that may be necessary or reasonably helpful in
connection with any Tax Proceeding, or the filing of a Tax Return or refund claim by a member of
the Cohesant Group or the XXXXX Group including certification, to the best of a Party’s knowledge,
of the accuracy and completeness of the information it has supplied;
(iii) the use of the Party’s reasonable best efforts to obtain any documentation that may be
necessary or reasonably helpful in connection with any of the foregoing. Each Party shall make its
employees and facilities available on a reasonable and mutually convenient basis in connection with
the foregoing matters; and
(iv) the sharing of information to enable each Party to timely fulfill its reporting
requirements pursuant to Treasury Regulations sections 1.355-5, if any.
(b) Retention of Records. Cohesant or any Cohesant Affiliate that is in possession of
documentation relating to XXXXX or any XXXXX Affiliate, including books, records, Tax Returns, and
all supporting schedules and information relating thereto that has not been previously provided to
XXXXX by Cohesant (the “XXXXX Business Records”), and XXXXX or any XXXXX Affiliate that is
in possession of documentation relating to the Cohesant, or any Cohesant Affiliate, including
books, records, Tax Returns, and all supporting schedules and information relating thereto that has
not been previously provided to Cohesant by XXXXX (the “Cohesant Business Records”), shall
each retain such XXXXX Business Records or Cohesant Business Records (i) for a period of seven (7)
years following the Spin-Off Date or (ii) until the expiration of the applicable statute of
limitations, whichever is longer. Thereafter, (i) if Cohesant wishes to dispose of XXXXX Business
Records in its possession, Cohesant shall provide written notice to XXXXX describing the
documentation proposed to be destroyed or disposed of sixty (60) Business Days prior to taking such
action, and XXXXX may arrange to take delivery of any or all of the documentation described in the
notice at its expense during the succeeding sixty (60) day period; and (ii) if XXXXX wishes to
dispose of Cohesant Business Records in its possession, XXXXX shall provide written notice to
Cohesant describing the documentation proposed to be destroyed or disposed of sixty (60) Business
Days prior to taking such action, and Cohesant may arrange to take delivery of any or all of the
documentation described in the notice at its expense during the succeeding sixty (60) day period.
8.02. Disputes. From and after the Effective Time, if the Parties cannot agree on the
calculation of any liability under this Agreement, or the interpretation or application of any
provision under this Agreement, either Party may provide the other Party written notice of intent
to invoke the dispute resolution procedures of this Section 8.02. Within 10 days following receipt
of such written notice, the Parties shall jointly retain a “big four” accounting firm, which firm
is independent of both Parties (the “Independent Firm”), to resolve the dispute. If the
parties cannot jointly agree on an Independent Firm to resolve the dispute within the 10 day
period, then each party shall select a nationally recognized law firm or “big four” accounting
firm, which firm is independent of both parties, and both law or accounting firms shall jointly
select an Independent Firm which shall make the determination under this Section 8.02. The
Independent Firm shall act as an arbitrator to resolve all points of disagreement and its decision
shall be final and binding on all parties involved, provided, however, that if the
disagreement relates to an amount of Tax at issue (or potentially at issue) equal to or greater
than $250,000, such decision shall be non-binding. The Independent Firm shall determine the
appropriate outcome based on this Agreement with respect to each disputed Item. The Independent
Firm shall have 90 days from the date it is selected in which to make such determinations, unless
the Parties mutually agree on an extension of such period or the Independent Firm, in its
discretion, determines that an extension of such period is warranted by exceptional circumstances.
The Parties shall provide the Independent Firm with such information or documentation as the
Independent Firm deems in its discretion to be necessary for it to make the determinations
requested of it. Any determination by the Independent Firm shall be in writing. Following the
decision of the Independent Firm, the Parties shall each take or cause to be taken any action
necessary to implement any binding decision of the Independent Firm. The fees and expenses
relating to the Independent Firm shall be borne by the party that such Independent Firm determines
has lost the dispute.
8.03. Complete Agreement; Construction. This Agreement shall constitute the entire
agreement between the Parties with respect to the subject matter hereof and shall supersede all
previous negotiations, commitments, and writings with respect to such subject matter. This
Agreement supersedes any prior tax matters agreements between Cohesant (or any Cohesant Affiliate)
or XXXXX (or any XXXXX Affiliate) and such prior tax matters agreements shall have no further force
and effect. In the event of any conflict between the terms and conditions of this Agreement and
the terms and conditions of the Separation Agreement or any other Ancillary Agreement, the terms
and conditions of this Agreement shall control.
8.04. Counterparts. This Agreement may be executed in more than one counterparts, all
of which shall be considered one and the same agreement, and shall become effective when one or
more such counterparts have been signed by each of the Parties and delivered to the other Parties.
Execution of this Agreement or any other documents pursuant to this Agreement by facsimile or other
electronic copy of a signature shall be deemed to be, and shall have the same effect as, execution
by original signature.
8.05. Survival of Agreement. Except as otherwise contemplated by this Agreement, all
covenants and agreements of the Parties contained in this Agreement shall survive the Effective
Time and remain in full force and effect in accordance with their applicable terms.
8.06. Notices. All notices, requests, claims, demands and other communications under
this Agreement, as between the Parties, shall be in writing and shall be given or made (and shall
be deemed to have been duly given or made upon receipt unless the day of receipt is not a Business
Day, in which case it shall be deemed to have been duly given or made on the next Business Day) by
delivery in person, by overnight courier service, by facsimile with receipt confirmed (followed by
delivery of an original via overnight courier service) or by registered or certified mail (postage
prepaid, return receipt requested) to the respective Parties at the following addresses (or at such
other address for a Party as shall be specified in a notice given in accordance with this Section
8.06):
To Cohesant: |
||||
| Cohesant Technologies Inc. c/o Graco, Inc. | ||||
| 00 00xx Xxxxxx Xxxxxxxxx | ||||
| Xxxxxxxxxxx, XX 00000 | ||||
| Attention: General Counsel | ||||
| Facsimile: | ||||
| With a copy to: | ||||
| Xxxxxxxxx & Xxxxxx | ||||
| 00 Xxxxx 0xx Xx., Xxxxx 0000 | ||||
| Xxxxxxxxxxx, XX 00000 | ||||
| Attention: Xxxxxx X. Xxxxxxxx, Esq. and | ||||
| Xxxxxx X. Xxxxx, Esq. | ||||
To XXXXX: |
||||
| XXXXX Inc. | ||||
| 00000 Xxxxxxxx Xxxx Xxxxx | ||||
| Xxxxxxxxx, Xxxx 00000 | ||||
| Attention: Chief Executive Officer | ||||
| Facsimile: | ||||
| With a copy to: | ||||
| Xxxxxx Xxxxxx Xxxxxx & Xxxxxx, LLP | ||||
| 000 Xxxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxxxxx, Xxxx 00000 | ||||
| Attention: Xxxxxxx X. Xxxxx, Esq. |
8.07. Changes in Law.
(a) Any reference to a provision of the Code or a law of another jurisdiction shall include a
reference to any applicable successor provision or law.
(b) If, due to any change in applicable law or regulations or their interpretation by any
court of law or other governing body having jurisdiction subsequent to the date of this Agreement,
performance of any provision of this Agreement or any transaction contemplated thereby shall become
impracticable or impossible, the Parties hereto shall use their commercially reasonable efforts to
find and employ an alternative means to achieve the same or substantially the same result as that
contemplated by such provision.
8.08. Waivers. The failure of any Party to require strict performance by any other
Party of any provision in this Agreement will not waive or diminish that Party’s right to demand
strict performance
thereafter of that or any other provision hereof.
8.09. Amendments. Except as provided in Section 8.12, this Agreement may not be
modified or amended except by an agreement in writing signed by each of the Parties.
8.10. Assignment. Except as otherwise expressly provided for in this Agreement, this
Agreement shall not be assignable, in whole or in part, by any Party without the prior written
consent of the other Party, and any attempt to assign any rights or obligations arising under this
Agreement without such consent shall be null and void; provided, that a Party may assign this
Agreement in connection with a merger transaction in which such Party is not the surviving entity
or the sale by such Party of all or substantially all of its Assets, and upon the effectiveness of
such assignment, the assigning Party shall be released from all of its obligations under this
Agreement, if the surviving entity of such merger or the transferee of such Assets shall agree in
writing in form and substance reasonably satisfactory to the other Party, to be bound by the terms
of this Agreement as if named as a “Party” hereto.
8.11. Successors and Assigns. The provisions of this Agreement and the obligations and
rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against)
the Parties and their respective successors and permitted transferees and assigns.
8.12. Termination, Etc. Notwithstanding anything to the contrary herein, this
Agreement (including Section 5 (Indemnification) hereof) may be terminated and abandoned at any
time prior to the Spin-Off Date by and in the sole discretion of Cohesant without the approval of
XXXXX or the stockholders of Cohesant. In the event of such termination, no Party shall have any
liability to any other Party or any other Person. After the Spin-Off Date, this Agreement may not
be terminated except by an agreement in writing signed by each of the Parties.
8.13. Third Party Beneficiaries. Except as otherwise expressly provided in this
Agreement, this Agreement is solely for the benefit of the Parties and should not be deemed to
confer upon third parties any remedy, claim, liability, reimbursement, cause of action or other
right in excess of those existing without reference to this Agreement.
8.14. Interpretations. Titles and headings to sections herein are inserted for the
convenience of reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
8.15. Schedules. The Schedules attached hereto are incorporated herein by reference
and shall be construed with and as an integral part of this Agreement to the same extent as if the
same had been set forth verbatim herein.
8.16. Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws, and not the laws governing conflicts of laws, of the State of Delaware.
8.17. Intentionally Omitted.
8.18. Specific Performance. The Parties agree that irreparable damage would occur in
the event that the provisions of this Agreement were not performed in accordance with their
specific terms. Accordingly, it is hereby agreed that the Parties shall be entitled to (i) an
injunction or injunctions to enforce specifically the terms and provisions hereof in any
arbitration, (ii) provisional or temporary injunctive relief in accordance therewith in any
Delaware Court, and (iii) enforcement of any such award of an arbitral tribunal or a
Delaware Court in any court of the United States, or any other court or tribunal sitting in any
state of the United States or in any foreign country that has jurisdiction, this being in addition
to any other remedy or relief to which they may be entitled.
8.19. Waiver of Jury Trial. SUBJECT TO SECTIONS 8.02 AND 8.18 HEREIN, EACH OF THE
PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY COURT PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF AND
PERMITTED UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.19.
8.20. Severability. In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any way be affected or
impaired thereby, and the Parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions, the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable provisions.
8.21. Force Majeure. No Party (or any person acting on its behalf) shall have any
liability or responsibility for failure to fulfill any obligation (other than a payment obligation)
under this Agreement so long as and to the extent to which the fulfillment of such obligation is
prevented, frustrated, hindered or delayed as a consequence of circumstances of a force majeure. A
Party claiming the benefit of this provision shall, as soon as reasonably practicable after the
occurrence of any such event: (a) notify the other Party of the nature and extent of any such a
force majeure condition and (b) use due diligence to remove any such causes and resume performance
under this Agreement as soon as reasonably practicable.
8.22. No Circumvention. The Parties agree not to directly or indirectly take any
actions, act in concert with any person who takes an action, or cause or allow any member Affiliate
to take any actions (including the failure to take a reasonable action) such that the resulting
effect is to materially undermine the effectiveness of any of the provisions of this Agreement
(including adversely affecting the rights or ability of any Party to successfully pursue
indemnification, contribution or payment pursuant to Sections 5 and 6).
8.23. Authorization. Each of the Parties hereby represents and warrants that it has
the power and authority to execute, deliver and perform this Agreement, that this Agreement has
been duly authorized by all necessary corporate action on the part of such Party, that this
Agreement constitutes a legal, valid and binding obligation of each such Party and that the
execution, delivery and performance of this Agreement by such Party does not contravene or conflict
with any provision of law or of its charter or bylaws or any material agreement, instrument or
order binding on such Party.
8.24. Setoff. All payments to be made by any Party under this Agreement may be netted
against payments due to such Party under this Agreement, but otherwise shall be made without
setoff, counterclaim or withholding, all of which are hereby expressly waived.
8.25. Confidentiality. Except as required by law, the terms and subject matter of
this Agreement shall remain confidential by all Parties.
8.26. Affiliates. Each of the Parties shall cause to be performed all actions,
agreements and obligations set forth herein to be performed by any Affiliate of such Party or by
any entity that becomes an Affiliate of such Party on and after the Spin-Off Date.
8.27. Construction. The Parties have participated jointly in the negotiation and
drafting of this Agreement. This Agreement shall be construed without regard to any presumption or
rule requiring construction or interpretation against the party drafting or causing any instrument
to be drafted.
8.28. Effective Time. This Agreement shall be effective as of the date first written
above.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties caused this Tax Matters Agreement to be duly executed as of
the day and year first above written.
| COHESANT TECHNOLOGIES INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | CEO | |||||
| XXXXX INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | Chief Financial Officer | |||||
