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Exhibit 10(b)
TAX SHARING AND INDEMNIFICATION AGREEMENT
Tax Sharing and Indemnification Agreement (the "Agreement"),
dated as of [September 1, 1997], by and between Monsanto Company, a Delaware
corporation ("LS") and [Queeny Chemical Company], a Delaware corporation
("Chem").
WHEREAS, LS has been engaged through various divisions in,
among other things, the manufacture and sale of chemical products which comprise
the Transferred Businesses (as hereinafter defined);
WHEREAS, the Board of Directors of LS has determined that the
interests of its businesses would be best served by separating its businesses
into two separate companies, one consisting of the life sciences businesses and
the other consisting of the chemical business;
WHEREAS, as set forth in the Distribution Agreement, dated as
of [September 1, 1997] ("Distribution Agreement"), and subject to the terms and
conditions thereof, LS wishes to transfer and assign to Chem substantially all
the assets of the chemical businesses, in exchange for (i) the assumption by
Chem of substantially all the liabilities and obligations relating to the
chemical businesses, and (ii) the issuance to LS by Chem of shares of Chem
common stock, (the "Chem Common Stock"), all as more fully set forth in the
Distribution Agreement;
WHEREAS, LS intends to distribute substantially all of the
outstanding shares of Chem Common Stock, on a pro rata basis, to the holders of
the common stock of LS, subject to the terms and conditions of the Distribution
Agreement;
WHEREAS, in contemplation of the Distribution (as hereinafter
defined) pursuant to which Chem and its subsidiaries will cease to be members of
the LS Group (as hereinafter defined), the parties hereto have determined to
enter into this Agreement, setting forth their agreement with respect to certain
tax matters;
WHEREAS, this Agreement also creates certain indemnification
obligations between the parties hereto if the actions of either a member of the
Chem Group or the LS Group have an adverse effect on the tax-free nature of the
Distribution or of any of the transactions related to the Distribution that were
otherwise intended to be tax free.
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NOW THEREFORE, in consideration of the premises set forth
above and the terms and conditions set forth below, the parties hereto agree as
follows:
Section 1. Definitions. For purposes of this Agreement, the
following definitions shall apply:
a. "Adjustment" shall mean any proposed or final change in the
tax liability of any member of the Chem Group or the LS Group.
b. "Affiliated Group" shall mean an affiliated group of
corporations within the meaning of Code Section 1504(a).
c. "Agreement" shall have the meaning ascribed to such term in
the introductory paragraph hereof.
d. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
e. "Chem" shall have the meaning ascribed to such term in the
introductory paragraph hereof.
f. "Chem Affiliated Group" shall mean, for each taxable
period, the Affiliated Group of which Chem or its successor is the common parent
corporation.
g. "Chem Carryback" shall have the meaning ascribed to such
term in Section 2(b)(i) hereof.
h. "Chem Common Stock" shall have the meaning ascribed to such
term in the third WHEREAS clause hereof.
i. "Chem Group" shall mean, for each taxable period, (i) the
corporations that are members of the Chem Affiliated Group, and (ii) the
corporations that would be members of the Chem Affiliated Group, but for the
fact that they are not includable corporations under Code Section 1504(b).
j. "Current Straddle Income Tax Liabilities" shall mean Income
Tax Liabilities relating to Straddle Period Income Tax returns required to be
filed by Chem pursuant to Section 3 hereof to the extent that such Income Tax
Liabilities are attributable to earnings accrued during such Straddle Periods on
or before the Distribution Date.
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k. "Dispute" shall have the meaning ascribed to such term in
Section 14(a) hereof.
l. "Distribution" shall mean the pro rata distribution of all
of the Chem Common Stock to the holders of the common stock of LS, pursuant to
the terms and conditions of the Distribution Agreement.
m. "Distribution Date" shall mean the date of the
Distribution.
n. "Final Determination" shall mean the final resolution of
any tax matter occurring after the Distribution Date. A Final Determination
shall result from the first to occur of:
(i) the expiration of 30 days after the IRS' acceptance
of a waiver of restrictions on assessment and collection of deficiency in tax
and acceptance of overassessment on federal revenue (Form 870 or 870-AD (the
"Waiver")) or any successor comparable form, except as to reserved matters
specified therein, or the expiration of 30 days after acceptance by any other
taxing authority of a comparable agreement or form under the laws of any other
jurisdiction, including State, local, and foreign; unless, within such period,
the taxpayer gives notice to the other party to this Agreement of the taxpayer's
intention to attempt to recover all or part of any amount paid pursuant to the
Waiver by the filing of a timely claim for refund;
(ii) a decision, judgment, decree, or other order by a
court of competent jurisdiction that is not subject to further judicial review
(by appeal or otherwise) and has become final;
(iii) the execution of a closing agreement under Code
Section 7121, or the acceptance by the IRS of an offer in compromise under Code
Section 7122, or comparable agreements under the laws of any other jurisdiction,
including State, local, and foreign, except as to reserved matters specified
therein;
(iv) the expiration of the time for filing a claim for
refund or for instituting suit in respect of a claim for refund that was
disallowed in whole or part by the IRS or any other taxing authority;
(v) the expiration of the applicable statute of
limitations; or
(vi) an agreement by the parties hereto that a Final
Determination has been made.
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o. "First Party" shall have the meaning ascribed to such term
in Section 6(g) hereof.
p. "Income Taxes" shall mean all Federal, State, local and
foreign taxes imposed upon, or measured, in whole or in part, by net income or a
taxable base in the nature of net income, including without limitations,
environmental and alternative or add-on minimum taxes (including the alternative
minimum tax imposed under Code Section 55), and such related franchise, excise,
and similar taxes as have been customarily included in the provision for income
taxes or charged to the income tax liability account on LS's financial
statements, together with all related interest, penalties, and additions to tax.
q. "Income Tax Liability" shall mean the net amount of Income
Taxes due and paid or payable for any taxable period, determined after applying
all tax credits and all applicable carrybacks or carryovers for net operating
losses, net capital losses, unused general business tax credits, or any other
relevant adjustments.
r. "Indemnifying Party" shall mean any party that is required
to pay any other party pursuant to the terms and conditions of this Agreement.
s. "Indemnified Party" shall mean any party who is entitled to
receive payments from an Indemnifying Party pursuant to the terms and conditions
of this agreement.
t. "IRS" shall mean the United States Internal Revenue Service
or any successor thereto, including but not limited to its agents,
representatives, and attorneys.
u. "LS" shall have the meaning ascribed to such term in the
introductory paragraph hereof.
v. "LS Affiliated Group" shall mean, for each taxable period,
the Affiliated Group of which LS or its successor is the common parent
corporation.
w. "LS Carryback" shall have the meaning ascribed to such term
in Section 2(b)(i) hereof.
x. "LS Group" shall mean, for each taxable period, (i) the
corporations that comprise the LS Affiliated Group, and (ii) the corporations
that would be members of the LS Affiliated Group, but for the fact that they are
not includable corporations under Code Section 1504(b).
y. "LS Tax Reduction" shall have the meaning ascribed to such
term in Section 2(b)(i).
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z. "Material Disposition" shall mean the sale or other
transfer by Chem of assets of the Saflex or Fibers Divisions which alone or in
the aggregate exceed $200 million.
z-1 "Other Tax Liabilities" shall mean the net amount of Other
Taxes due and paid or payable for any taxable period or transaction, after
applying all tax offsets and credits.
z-2 "Other Taxes" shall mean any and all taxes other than
Income Taxes, including, without limitation, gross income, gross receipts,
sales, use, transfer, franchise, license, withholding, payroll, value added,
employment, excise, severance, stamp, occupations, premium, windfall profits,
custom, duty, or other charge of any kind whatsoever, together with all related
interest, penalties, and additions to tax, or additional amount imposed by any
taxing authority. Expressly excluded from "Other Taxes" are all property and ad
valorem taxes.
z-3 "Straddle Period" shall have the meaning ascribed to such
term in Section 3(a)(ii) hereof.
z-4 "Tax Benefit" shall mean a reduction in the Income Tax
Liability of a party to this Agreement (or of the Affiliated Group of which it
is a member) if any portion of such reduction is actually realized or projected
to be realized in any taxable period ending on or before December 31, 2007.
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 Income Tax Liability of the party (or of the Affiliated
Group of which it is a member) for such period, after taking into account the
effect of the Tax Item on the Income Tax Liability of such party in all prior
periods, is less than it would have been if such Income Tax Liability were
determined without regard to such Tax Item. In determining the amount of the Tax
Benefit, the marginal tax rate, without regard to alternative minimum tax, shall
be utilized, net operating loss carryforwards shall be ignored, and net present
value calculations shall not be made. A Tax Item that results in additional tax
basis to a non-depreciable, non-amortizable asset shall not be treated as
resulting in a Tax Benefit until a reduction in Income Tax Liability is actually
realized on a Tax Return.
z-5 "Tax Detriment" shall mean an increase in the Income Tax
Liability of a party to this Agreement (or of the Affiliated Group 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 suffered
from a Tax Item in a taxable period, only if and to the extent that the Income
Tax Liability of the party (or the Affiliated Group of which it is a member) for
such period, after taking into account the effect of the Tax Item on the Income
Tax Liability of such party in all prior periods, is greater than it would have
been if
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such Income Tax Liability were determined without regard to such Tax Item.
z-6 "Tax Item" shall mean any item of income, gain, loss,
deduction, credit, recapture of credit, or any other item which may have the
effect of increasing or decreasing Income Tax Liability.
z-7 "Tax Period" shall mean, with respect to any tax, the
period for which the tax is reported as provided under the Code or other
applicable laws.
z-8 "Tax Returns" shall mean all reports, estimates,
declarations of estimated tax, information statements and returns relating to,
or required to be filed in connection with any Income Taxes or Other Taxes,
including information returns or reports with respect to backup withholding and
other payments to third parties.
z-9 "Transaction Taxes" shall have the meaning ascribed to
that term in Section 4(c) hereof.
z-10 "Distribution Agreement" shall have the meaning ascribed
to that term in the third WHEREAS clause hereof.
[z-11 "Transferred Businesses" shall have the same meaning
ascribed to the term "Chemicals Assets" in the Distribution Agreement.]
z-12 "Treasury Regulations" shall mean the Treasury
Regulations promulgated under the Code.
z-13 "Waiver" shall have the meaning ascribed to such term in
Section 1(n)(i) hereof.
Section 2. Preparation of Tax Returns.
a. Manner of Preparation. All Tax Returns filed after the
Distribution Date shall be prepared on a basis that is consistent with the
rulings obtained from the IRS or any other governmental authority in connection
with the Distribution (in the absence of a controlling change in law or
circumstances) and shall be filed on a timely basis (including pursuant to
extensions) by the party responsible for such filing under this Agreement. In
the absence of a controlling change in law or circumstances, or except as
otherwise provided in this Agreement or agreed in writing by LS and Chem, all
Tax Returns filed after the date of this Agreement shall be prepared on a basis
consistent with the elections, accounting methods, conventions, and principles
of taxation used for the most recent taxable periods for which Tax Returns
involving similar Tax Items have
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been filed, except that, with respect to Tax Items not relating to the
Distribution, one party may take an inconsistent position to the extent such
position does not create a Tax Detriment to the other party. Subject to the
provisions of this Agreement, all decisions relating to the preparation of Tax
Returns shall be made in the sole discretion of the party responsible under this
Agreement for such preparation. Unless the parties hereto otherwise mutually
agree in writing no election shall be made by either LS or Chem under Treasury
Regulation Section 1.1502-76(b)(2)(ii) or (iii).
b. Carryback Reporting.
(i) If the Income Taxes of the LS Group are reduced for a
taxable period beginning before the Distribution Date (and, in the case of
separate state and local Income Tax Returns and foreign Income Tax Returns,
ending on or before the Distribution Date), (the "LS Tax Reduction"), by reason
of a Chem loss or other Income Tax attribute arising on or after the
Distribution Date (a "Chem Carryback"), LS shall pay to Chem an amount equal to
the portion of the LS Tax Reduction that is attributable to the Chem Carryback.
If both a Chem Carryback and a LS loss or other Income Tax attribute arising on
or after the Distribution Date (a "LS Carryback") exist, the absorption rules of
Treasury Regulation Section 1.1502-21A(b)(3) or 1.1502-21T(b)(1), as applicable,
shall be applied to determine the portion of the LS Tax Reduction attributable
to the Chem Carryback and the LS Carryback, respectively. Nothing herein shall
require either Chem or LS to carry back a loss or other Income Tax attribute
that it generates. Any payment required to be made pursuant to this Section
2(b)(i) shall be made no later than ten days after the LS Tax Reduction is
actually received, credited, or otherwise utilized by LS.
(ii) Neither the LS Group nor the Chem Group shall be
obligated to make a payment to any member of the other group as a result of
utilizing a net operating loss or other Income Tax attribute relating to a
period beginning prior to the Distribution Date.
c. Allocation of Earnings and Profits. Except as otherwise
specifically provided herein, pre-Distribution earnings and profits shall be
allocated in accordance with Treasury Regulation Section 1.312-10(a).
d. Reporting of Foreign Restructuring. The pre-Distribution
restructuring transactions involving Monsanto do Brasil, Ltd, Mopar, Ltd,
Monsanto Deutschland, GmbH, Monsanto Europe, S.A. and Monsanto, PLC, shall be
reported for United States Federal income tax purposes as transactions
qualifying under Code Section 355 and the parties hereto will apply the
principles of Temporary Treasury Regulation Section 7.367(b)-10 in respect of
those restructuring transactions.
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Section 3. Filing of Income and Other Tax Returns.
a. LS Responsibilities for Income and Other Tax Returns. LS
shall prepare and file, or cause to be prepared and filed:
(i) all Income and Other Tax Returns of or with respect
to all members of the LS Group for all periods ending on or prior to the
Distribution Date; and
(ii) all Income and Other Tax Returns of or with respect
to all members of the LS Group for all periods beginning on or prior to the
Distribution Date and ending after the Distribution Date ("Straddle Periods")
other than Straddle Period Income and Other Tax Returns of those corporations
that will be members of the Chem Group following the Distribution.
b. Chem Responsibilities for Income and Other Tax Returns.
Chem shall prepare and file, or cause to be prepared and filed:
(i) all Income and Other Tax Returns of or with respect
to members of the Chem Group for all periods beginning on or after the
Distribution Date; and
(ii) all Income and Other Tax Returns of or with respect
to all corporations that will be members of the Chem Group following the
Distribution for all Straddle Periods.
Section 4. Payment of Income and Other Taxes.
a. LS Obligations. LS shall (except as provided in Sections
2(b), 4(c), 8(d) and 9(b) of this Agreement):
(i) pay, or cause to be paid, and shall indemnify and
hold harmless Chem against all Income and Other Tax Liabilities that relate to
all Tax Returns that LS is required to prepare and file, or cause to be prepared
and filed, pursuant to Section 3 of this Agreement; and
(ii) be entitled to all refunds of Income and Other Taxes
related thereto.
b. Chem Obligations. Chem shall (except as provided in
Sections 4(c), 8(d) and 9(b) of this Agreement):
(i) pay, or cause to be paid, and shall indemnify and
hold harmless LS against all Income and Other Tax Liabilities that relate to all
Tax
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Returns that Chem is required to prepare and file, or cause to be prepared and
filed, pursuant to Section 3 of this Agreement; and
(ii) be entitled to all refunds of Income and Other Taxes
related thereto.
c. Transaction Taxes. Any sales, use, value added, gross
receipts, retailer's occupation, real estate transfer tax arising out of the
transfer of assets or liabilities to any member of the LS or Chem Group in
contemplation of the Distribution, and any stock transfer tax and other similar
taxes and fees arising out of the Distribution (collectively, "Transaction
Taxes") shall be borne 100% by the LS Group and the LS Group shall indemnify the
Chem Group against any such Transaction Taxes.
d. Special Indemnity Payment. Within 60 days after the
Distribution Date, LS shall pay to Chem an amount equal to the Current Straddle
Period Income Tax Liabilities.
Section 5. Property Taxes.
a. Pre-Distribution Property Taxes. If the failure to make any
ad valorem or property tax payment on or before the Distribution Date on
property owned by any member of the LS Group, including assets to be transferred
to the Chem Group, would cause (i) the tax to be delinquent, or (ii) the
forfeiture of a cash discount, the tax shall be paid by the member of the LS
Group which owns such property. The LS Group shall indemnify and hold harmless
Chem and members of the Chem Group from and against all property and ad valorem
taxes allocated to the LS Group hereunder.
b. Post-Distribution Property Taxes. Any property or ad
valorem tax payments on Transferred Assets that would become delinquent after
the Distribution Date shall be paid by the Chem Group. The Chem Group shall
indemnify and hold harmless LS and members of the LS Group from and against all
property and ad valorem taxes allocated to the Chem Group hereunder.
c. Return Preparation. Preparation and timely filing of all
tax returns in respect of Pre and Post Distribution property or ad valorem
taxes, on property owned by any member of the LS or Chem Group, shall be the
responsibility of the LS or Chem Group member owning such property at the time
the property or ad valorem tax returns are due.
Section 6. Audits and Tax Controversies and Adjustments.
a. Audit Responsibility and Control. Except as otherwise
provided
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in this Agreement, LS shall have sole responsibility for and control over all
audits with respect to any Tax Return that it is required to file under Sections
3 and 5 hereof. Chem shall have sole responsibility and control over all audits
with respect to any Tax Return that it is required to file under Sections 3 and
5 hereof.
b. Notice; Contest. Whenever LS or Chem receives in writing
from the IRS or any other taxing authority notice of an Adjustment which may
give rise to a payment from the other party under this Agreement, LS or Chem (as
the case may be) shall give notice of the Adjustment to the other party within
30 days of becoming aware of such receipt, but in no case less than 30 days
before LS or Chem, as the case may be, is required to respond to the IRS or any
other taxing authority. The Indemnifying Party shall, at its cost and expense,
have control over all matters with respect to which such party has an
indemnification or payment obligation pursuant to this Agreement (other than
Section 6(g) hereof). The foregoing notwithstanding, the Indemnified Party and
its representatives, at the Indemnified Party's expense, shall be entitled to
participate in all conferences, meetings, and proceedings with respect thereto
and shall be entitled to consult with the Indemnifying Party with respect to all
such matters. Notwithstanding the foregoing, if the IRS or any other taxing
authority proposes to disallow any of the deductions required to be taken by a
member of the LS or Chem Group pursuant to Section 7 of this Agreement, LS or
Chem, as the case may be, shall contest such proposed disallowance, or shall
cause such disallowance to be contested to a Final Determination unless
otherwise agreed by the parties in writing.
c. Consultation with Chem. LS may consult with Chem, and Chem
agrees to fully cooperate with LS, in the negotiation, settlement, or litigation
of any liability for taxes of any member of the LS Group regardless of the
effect of any such negotiation, settlement, or litigation on the liability for
taxes of any member of the Chem Group.
d. Consultation with LS. Chem may consult with LS, and LS
agrees to fully cooperate with Chem, in the negotiation, settlement, or
litigation of any liability for taxes of any member of the Chem Group regardless
of the effect of any such negotiation, settlement, or litigation on the
liability for taxes of any member of the LS Group.
e. Tax Basis Adjustments. LS will notify Chem in writing of
any adjustments to the tax basis of the assets of the Transferred Businesses,
specifying the nature of the adjustments, such that the Chem Group will be able
to reflect the revised basis in its tax books and records for periods beginning
on or after the Distribution Date or in any Straddle Period Tax Returns.
f. Earnings and Profits Adjustments. LS will notify Chem of
any redetermination of the earnings and profits and related amounts of
creditable
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foreign taxes of any of the foreign corporations that are transferred by LS to
Chem following their acquisition by the LS Group in a transaction intended to
qualify under Code Section 355(a).
g. Certain Adjustments. Except as otherwise provided in this
Agreement, if a Final Determination with respect to any Tax Item (including,
without limitation, any Tax Item relating to depreciation or amortization) of
one party (the "First Party") results in a Tax Detriment to the First Party and,
if as a result of such Final Determination, (i) the other party becomes entitled
to take a reporting position with respect to the same Tax Item that may result
in a Tax Benefit to such other party, on an appropriate Tax Return, including an
amended Tax Return, or (ii) the other party has already taken a reporting
position consistent with such Final Determination on an appropriate tax return,
and, in the case of both (i) and (ii), such reporting position will result in
the realization of a Tax Benefit for the other party, then such other party
shall, within 30 days after notification and documentation of such Final
Determination, pay to the First Party the aggregate amount of such Tax Detriment
(not including interest or penalties) suffered by the First Party but limited to
an amount not greater than the Tax Benefit to be realized by the other party.
For purposes of this Section, the term party shall refer to
any member of the LS Group and any member of the Chem Group, as the case may be.
h. Transaction Taxes Refunded. If one party or a member of
such party's Group (the "First Party") pays Transaction Taxes and the other
party or a member of such other party's Group (the "Other Party") has a right to
receive a refund of such Transaction Taxes ("Refund Amount") and receives such
Refund Amount after the Distribution Date, such Other Party shall reimburse the
Refund Amount to the First Party.
Section 7. Taxability and Reporting of Nonqualified Stock
Options.
Each of LS and Chem shall be responsible for making all
reports required to be made to any relevant tax authority with respect to any
grants or exercises of nonqualified stock options with respect to their
respective stocks. LS (or the appropriate member of the LS Group) shall take all
tax deductions arising by reason of exercises of such nonqualified stock options
to purchase shares of LS stock. Chem (or the appropriate member of the Chem
Group) shall take all tax deductions arising by reason of exercises of
nonqualified stock options to purchase shares of Chem stock. If, pursuant to a
Final Determination, all or any part of a tax deduction taken pursuant to this
Section 7 is disallowed to LS, then, to the extent permitted by law, the
appropriate member of the Chem Group shall take such deduction. If a member of
the Chem Group receives a Tax Benefit in
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any period as a result of any deduction taken by a member of the Chem Group in
respect of options exercised against LS stock, Chem shall pay the amount of such
Tax Benefit to LS. If, pursuant to a Final Determination, all or any part of a
tax deduction taken pursuant to this Section 7 is disallowed to Chem, then, to
the extent permitted by law, the appropriate member of the LS Group shall take
such deduction. If a member of the LS Group receives a Tax Benefit in any period
as a result of any deduction taken by a member of the LS Group in respect of
options exercised against Chem stock, LS shall pay the amount of such Tax
Benefit to Chem.
Section 8. Liability of Chem Group for Undertaking Certain
Transactions.
a. General. (i) Chem shall, and shall cause each member of the
Chem Group to, comply with each representation and statement made, or to be
made, to any taxing authority in connection with any ruling obtained, or to be
obtained, by LS in respect of the Distribution, from any such taxing authority
with respect to any transaction contemplated by the Distribution Agreement and
(ii) neither Chem nor any member of the Chem Group shall for a period of two
years following the Distribution Date (A) make a Material Disposition (including
transfers from one member of the Chem Group to another member of the Chem
Group), or cessation of operations by means of a sale or exchange of assets or
capital stock, a distribution to stockholders, or otherwise, of assets; (B)
repurchase or issue any Chem capital stock that in the aggregate exceeds twenty
percent (20%) of the issued and outstanding stock of Chem immediately following
the Distribution; (C) liquidate or merge with any other corporation (including a
member of the Chem Group); or (D) cease to engage in the active conduct of a
trade or business within the meaning of Code Section 355(b)(2), unless, in each
of cases (A), (B), (C), and (D), pursuant to a favorable supplemental ruling
letter from the appropriate taxing authority, reasonably satisfactory to LS,
such act or omission would not adversely affect the tax consequences of the
Distribution to LS, Chem, or the stockholders of LS or unless LS consents in
writing to any such transactions. Chem has no present intention to take any such
actions.
b. IntraGroup Transfers. Notwithstanding Section 8(a), the
Chem Group (other than Chem), shall be allowed to make intragroup transfers of
assets, provided, however, such transfers may be made within two years after the
Distribution Date to or from the Chem Group successors to assets of Monsanto do
Brasil, Ltd., Monsanto Deutschland, GmbH, Monsanto Europe, S.A. and Monsanto,
PLC, only if LS consents to such transfers in writing or if, in the opinion of
tax counsel to Chem, or pursuant to a favorable supplemental ruling letter from
the appropriate taxing authority, such transfer would not adversely affect the
tax consequences of the Distribution to LS, Chem, or the stockholders of LS. Any
opinion required to be obtained under this subsection 8(b) shall be
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from a nationally recognized law firm and shall be in a form reasonably
acceptable to LS.
c. Other Transactions.
(i) Chem represents that as of the Distribution Date, it
does not have any plan, agreement, arrangement, or any other intention to enter
into a transaction (or a series of related transactions) whereby a Person would
acquire greater than 50 percent of the vote or value of any class of stock of
Chem;
(ii) Neither Chem nor any member of the Chem Group shall
for a period of two years following the Distribution Date enter into a
transaction (or series of related transactions) whereby a Person would acquire
greater than 50 percent of the vote or value of any class of stock of Chem (or
any successor of Chem), unless Chem receives a favorable supplementary ruling
letter from the appropriate taxing authority, reasonably satisfactory to LS that
such transaction (or series of related transactions) would not adversely affect
the tax-free status of the Distribution and related transactions to LS, Chem, or
the stockholders of LS or unless LS consents in writing to any such transaction
(or series of related transactions);
(iii) For purposes of this Section 8(c): (A) a Person
shall have the meaning ascribed to such term in Code Section 7701(a)(1); (B) all
Persons related to such Person within the meaning of Code Sections 267(b) or
707(b)(1) shall be treated as one Person; (C) two or more Persons acting
pursuant to a plan or arrangement with respect to the acquisition of any class
of Chem stock shall be treated as one Person; and (D) Code Section 318(a)(2)
shall apply in determining whether a Person holds stock in Chem, except that
Code Section 318(a)(2)(C) shall be applied without regard to the phrase "50
percent or more in value" for such purposes; and
(iv) The provisions of this Section 8(c) are intended to
prevent the Chem Group from entering into post-Distribution transactions which
under proposed legislation (H.R. 1365 (1997); S. 612 (1997)) would adversely
affect the tax-free status of the Distribution and transactions related to the
Distribution. If, prior to enactment, such proposed legislation is modified,
neither Chem nor any member of the Chem Group shall undertake any transaction or
series of transactions that could be construed as falling within the scope of
such revised legislation unless Chem receives a favorable supplementary ruling
letter from the appropriate taxing authority, reasonably satisfactory to LS that
such transaction (or series of transactions) would not adversely affect the
tax-free status of the Distribution and related transactions to LS, Chem, or the
stockholders of LS or unless LS consents in writing to any such transaction (or
series of related transactions).
d. Special Chem Indemnity Obligations. Notwithstanding any
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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 Chem Group, any Income Taxes are imposed on, or other losses (including,
without limitation, attorneys' fees and expenses and losses suffered by the LS
Group as a result of actions instituted by shareholders of LS or Chem ("LS
Losses")) are suffered by, any member of the LS Group with respect to the
Distribution or any such event, action or failure to act on the transactions
related to the Distribution, including, without limitation, the transactions in
various foreign jurisdictions that were intended to be tax free under Code
Sections 355 and 368 for United States Income Tax purposes, then Chem shall
indemnify and hold harmless each member of the LS Group with respect to any such
Income Taxes or LS Losses (including any Income Taxes payable by LS on amounts
received by LS from Chem pursuant to this Section 8(d)). Chem shall make such
indemnification payment no later than 7 days after receiving written notice from
any member of the LS Group of a Final Determination with respect to such Income
Taxes, which notice shall be accompanied by a computation of the amount due.
e. Other Remedies. Chem recognizes that failure to comply with
its obligations under this Section 8 may result in irreparable harm to LS and
its shareholders and that LS and its shareholders may be inadequately
compensated by monetary damages for such failure. If Chem shall fail to comply
with its obligations under this Section 8, LS shall be entitled to injunctive
relief and specific performance in addition to all other remedies.
Section 9. Liability of LS Group for Undertaking Certain
Transactions.
a. General.
(i) LS represents that as of the Distribution Date, it
does not have any plan, agreement, arrangement, or any other intention to enter
into a transaction (or a series of related transactions) whereby a Person would
acquire greater than 50 percent of the vote or value of any class of stock of
LS;
(ii) Neither LS nor any member of the LS Group shall for a
period of two years following the Distribution Date enter into a transaction (or
series of related transactions) whereby a Person would acquire greater than 50
percent of the vote or value of any class of stock of LS (or any successor of
LS), unless LS receives a favorable supplementary ruling letter from the
appropriate taxing authority, reasonably satisfactory to Chem that such
transaction (or series of related transactions) would not adversely affect the
tax-free status of the Distribution and related transactions to LS, Chem, or the
stockholders of LS or unless Chem consents in writing to any such transaction
(or series of related
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transactions);
(iii) For purposes of this Section 9(a): (A) a Person shall
have the meaning ascribed to such term in Code Section 7701(a)(1); (B) all
Persons related to such Person within the meaning of Code Sections 267(b) or
707(b)(1) shall be treated as one Person; (C) two or more Persons acting
pursuant to a plan or arrangement with respect to the acquisition of any class
of LS stock shall be treated as one Person; and (D) Code Section 318(a)(2) shall
apply in determining whether a Person holds stock in LS, except that Code
Section 318(a)(2)(C) shall be applied without regard to the phrase "50 percent
or more in value" for such purposes; and
(iv) The provisions of this Section 9(a) are intended to
prevent the LS Group from entering into post-Distribution transactions which
under proposed legislation (H.R. 1365 (1997); S. 612 (1997)) would adversely
affect the tax-free status of the Distribution and transactions related to the
Distribution. If, prior to enactment, such proposed legislation is modified,
neither LS nor any member of the LS Group shall undertake any transaction or
series of transactions that could be construed as falling within the scope of
such revised legislation unless LS receives a favorable supplementary ruling
letter from the appropriate taxing authority, reasonably satisfactory to Chem
that such transaction (or series of transactions) would not adversely affect the
tax-free status of the Distribution and related transactions to LS, Chem, or the
stockholders of LS or unless Chem consents in writing to any such transaction
(or series of related transactions).
b. Special LS Indemnity Obligation. If, as a result of LS's
failure to comply with its obligations under this Section 9, any Income Taxes
are imposed on, or other losses (including, without limitation, attorneys' fees
and expenses and losses suffered by the Chem Group as a result of actions
instituted by shareholders of LS or Chem ("Chem Losses")) are suffered by, any
member of the Chem Group with respect to such failure to comply, then LS shall
indemnify and hold harmless each member of the Chem Group with respect to any
such Income Tax or Chem Losses (including any Income Taxes payable by Chem on
amounts received by Chem from LS pursuant to this Section 9(b)). LS shall make
such indemnification payment no later than seven (7) days after receiving
written notice from any member of the Chem Group of a Final Determination with
respect to such Income Taxes, which notice shall be accompanied by a computation
of the amount due.
Section 10. Partnership Items.
On or before September 30, 1998, the Chem Group shall pay to the
LS Group an amount equal to the excess of (i) the federal and state income tax
liability (utilizing a tax rate of 36%) imposed on the LS Group as a result of
including the various items of income, deductions and credits passed through
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from AES, L.P. and Flexsys, L.P. for taxable periods beginning on January 1,
1997 and ending on the Distribution Date, over (ii) the sum of the aggregate of
the cash distributions made by AES, L.P. and Flexsys, L.P. to a member of the LS
Group in respect of the period January 1, 1997 through the Distribution Date
plus the Tax Benefit realized by the LS Group from utilization of MISCO by each
of the partnerships. To the extent such amount in (ii) as relates to
distributions against 1997 taxes exceeds the amount in (i) above, the LS Group
shall pay to the Chem Group such excess by such date.
Section 11. Indemnification.
a. Timing in General Unless otherwise specified in this
Agreement, all indemnification and other payments to be made pursuant to this
Agreement shall be made within 30 days of written notice of a request for
indemnification or payment by the Indemnified Party, which notice shall be
accompanied by a computation of the amount due.
b. Special Timing Rules. If any indemnification or other
payment is required to be made under Section 7 of this Agreement upon the
realization by the Indemnifying Party of a Tax Benefit, such payment shall be
made no later than 30 days after the earlier of (a) the filing or (b) the due
date (including extensions) of the Tax Return with respect to which such Tax
Benefit is realized. The parties shall cooperate in good faith in enforcing the
provisions of this Section 11(b), which cooperation shall include the provision
of reasonable access to the Tax Returns of the Indemnifying party by the
Indemnified Party in order to determine the amount of any indemnification or
other payment to be made pursuant to this Section 11(b).
c. Interest. If any indemnification payment required to be
made pursuant to this agreement is not made when due, such payment shall bear
interest at the prevailing federal short-term interest rate as determined under
Section 6621 of the Code.
Section 12. Cooperation and Exchange of Information.
a. Tax Return Information.
(i) Chem shall, and shall cause each appropriate member
of the Chem Group to, provide at Chem's cost and expense LS with all information
and other assistance reasonably requested by LS to enable the members of the LS
Group to prepare and file the Tax Returns required to be filed by them pursuant
to this Agreement.
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(ii) LS shall, and shall cause each appropriate
member of the LS Group to, provide at LS's cost and expense Chem with all
information and other assistance reasonably requested by Chem to enable the
members of the Chem Group to file the Tax Returns required to be filed by them
pursuant to this Agreement.
(iii) Within 5 days of filing a Tax Return that
affects the liability or the determination of the liability for taxes of any
member of the Chem Group by a member of the LS Group, such member of the LS
Group shall provide Chem with a copy of only that portion of such Tax Return
which is relevant to a member of the Chem Group.
(iv) In addition to the foregoing, LS and Chem agree
to fully cooperate with each other in connection with the preparation of all Tax
Returns required to be filed by them. Such cooperation shall include making
personnel and records available promptly and within 20 days (or such other
period as may be reasonable under the circumstances) after a request for such
personnel or records is made by the taxing authority or the other party. If any
member of LS Group or the Chem Group, as the case may be, unreasonably fails to
provide any information required pursuant to this Section, then the requesting
party shall have the right to engage an independent certified public accountant
of its choice to gather such information. LS or Chem, as the case may be, agrees
to permit any such independent certified public accountant full access to the
Tax Return information in the possession of any member of the LS Group or Chem
Group, as the case may be, during reasonable business hours, and to reimburse or
pay directly all costs and expenses in connection with the engagement of such
independent certified public accountant.
(v) LS shall indemnify and hold harmless each member
of the Chem Group and its officers and employees, and Chem shall indemnify and
hold harmless each member of the LS Group and its officers and employees,
against any cost, fine, penalty, or other expenses of any kind attributable to
the negligence of a member of the LS Group or the Chem Group, as the case may
be, in supplying a member of the other group with inaccurate or incomplete
information, in connection with the preparation of any Tax Return.
(b) Chem Payroll and Unemployment Compensation Taxes For
Periods Ending On or After the Distribution Date. LS shall make available to
Chem sufficient data to facilitate a determination of the desirability of the
transfer to the Chem Group of any payroll tax experience and/or any favorable
unemployment compensation tax experience rating of LS; and at Chem's election,
LS shall cooperate to effect a transfer of such payroll tax experience and/or
such favorable unemployment compensation experience rating (including state
unemployment reserves) to the Chem Group within one hundred and twenty (120)
days after Chem's written request therefor.
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(c) Research Tax Credit Information. LS will timely furnish
the Chem Group the base period information the Chem Group will need, pursuant to
Code Section 41, to properly compute its research tax credits for years
beginning after the Distribution Date.
Section 13. Retention of Records.
a. General. LS and Chem agree to retain the appropriate
records which may affect the determination of the liability for taxes of any
member of the LS Group or the Chem Group, respectively, until such time as there
has been a Final Determination with respect to such liability for taxes.
b. Notice of Waivers. LS and Chem will notify each other in
writing of any waivers or extensions of the applicable statute of limitations
that may affect the period for which any materials, records, or documents must
be retained.
Section 14. Resolution of Disputes.
a. General. Any claim, dispute, difference or controversy
between the parties which may arise out of, in relation to, or in connection
with this Agreement (a "Dispute") which cannot be settled by mutual
understanding of the parties shall be submitted initially for resolution to the
respective chief executive officers of each of Chem and LS. Such officers shall
meet and use reasonable efforts to resolve said Dispute.
b. Arbitration. If the parties are, after negotiation in good
faith as described in paragraph (a) of this Section 14, unable to agree upon the
appropriate application of this Agreement, the controversy shall be settled by
arbitration in accordance with the rules of the American Arbitration
Association.
c. Procedures. Upon written notice by any party to the other
party that the controversy is to be submitted to arbitration, each party shall
appoint an independent arbitrator (who shall be a tax attorney or independent
certified public accountant) within 30 days, and two arbitrators so appointed
shall appoint a third arbitrator within 30 days after the appointment of the
last arbitrator appointed within the initial 30 day period. If any party fails
to appoint an arbitrator or the parties agree on a single arbitrator, the
controversy shall be determined by a single arbitrator. If the two arbitrators
are unable to agree on a third arbitrator within 30 days, any party may apply to
the American Arbitration Association to make such appointment, and all parties
shall be bound by any appointment so made.
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d. Situs. The locale of the arbitration shall be St. Louis,
Missouri, or any other location mutually agreed on by all parties.
e. Finality. The award of the arbitrators (or arbitrator)
shall be final, and judgment upon the award rendered may be entered in any court
having jurisdiction.
f. Expenses. The expenses of the arbitration procedure shall
be borne in equal parts by the parties, unless the arbitration award specifies
otherwise.
Section 15. Miscellaneous.
a. Term of the Agreement. This Agreement shall become
effective as of the date of its execution and, except as otherwise expressly
provided herein, shall continue in full force and effect until the expiration of
the latest applicable statute of limitations period.
b. Elections Under Code Section 1552. Nothing in this
Agreement is intended to change or otherwise affect any election made by or on
behalf of the LS Affiliated Group with respect to the calculation of earnings
and profits under Code Section 1552. LS is authorized to seek any change in the
method of calculating earnings and profits as it deems desirable.
c. Code Section 367 Notices. Each member of the LS and Chem
Group required under Temporary Treasury Regulation Section 7.367(b)-1(c) to file
a notice or notices in respect of any pre-Distribution restructuring transaction
referred to in Section 2(d) hereof, shall timely file such notice in proper
form.
d. Severability. If any term, provision, covenant, or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void, or unenforceable, the remainder of the terms, provisions,
covenants, and restrictions set forth herein shall remain in full force and
effect, and shall in no way be affected, impaired, or invalidated. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants, and restrictions without
including any of such which may be hereafter declared invalid, void, or
unenforceable. In the event that any such term, provision, covenant, or
restriction is held to be invalid, void, or unenforceable, the parties hereto
shall use their best efforts to find and employ an alternate means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant, or restriction.
e. Assignment. Except by operation of law or in connection
with the sale of all or substantially all the assets of a party hereto, this
Agreement
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shall not be assignable, in whole or in part, directly or indirectly, by any
party hereto without the advance written consent of the other party; and any
attempt to assign any rights or obligations arising under this Agreement without
such consent shall be void; provided, however, that the provisions of this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the parties hereto and their respective successors and permitted assigns.
f. Further Assurances. Subject to the provisions hereof, the
parties hereto shall make, execute, acknowledge, and deliver such other
instruments and documents, and take all such other actions, as may be reasonably
required in order to effectuate the purposes of this Agreement and to consummate
the transactions contemplated hereby. Subject to the provisions hereof, each of
the parties shall, in connection with entering into this Agreement, performing
its obligations hereunder and taking any and all actions relating hereto, comply
with all applicable laws, regulations, orders, and decrees, obtain all required
consents and approvals and make all required filings with any governmental
agency, other regulatory or administrative agency, commission or similar
authority, and promptly provide the other parties with all such information as
they may reasonably request in order to be able to comply with the provisions of
this sentence.
g. Parties in Interest. Except as herein otherwise
specifically provided, nothing in this Agreement expressed or implied is
intended to confer any right or benefit upon any person, firm, or corporation
other than the parties and their respective successors and permitted assigns.
h. Waivers, Etc. No failure or delay on the part of the
parties in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise or any such right or power, or
any abandonment or discontinuance of steps to enforce such right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No modification or waiver of any provision of this Agreement nor
consent to any departure by the parties therefrom shall in any event be
effective unless the same shall be in writing, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given.
i. Setoff. All payments to be made by any party under this
Agreement shall be made without setoff, counterclaim, or withholding, all of
which are expressly waived.
j. Change of Law. 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 best efforts to
find
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and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such provision.
k. Confidentiality. Subject to any contrary requirement
of law and the right of each party to enforce its rights hereunder in any legal
action, each party agrees that it shall keep strictly confidential, any
information which it or any of its employees or agents may require pursuant to,
or in the course of performing its obligations under, any provision of this
Agreement.
l. Headings. Descriptive headings are for convenience
only and shall not control or affect the meaning or construction of any
provision of this Agreement.
m. Counterparts. For the convenience of the parties, any
number of counterparts of this Agreement may be executed by the parties hereto,
and each such executed counterpart shall be, and shall be deemed to be, an
original instrument.
n. Notices. All notices, consents, requests,
instructions, approvals, and other communications provided for herein shall be
validly given, made, or served, if in writing and delivered personally, by
telegram or sent by registered mail, postage prepaid, or by facsimile
transmission to:
If to LS, to it at:
Monsanto Company
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
with a copy to:
Monsanto Company
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Vice President - Tax
If to Chem, to it at:
[Queeny] Chemical Company
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
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with a copy to:
[Queeny] Chemical Company
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Vice President - Tax
or to such other address as any party may, from time to time, designate in a
written notice given in a like manner. Notice given by telegram shall be deemed
delivered when received by the recipient. Notice given by mail as set out above
shall be deemed delivered five calendar days after the date the same is mailed.
Notice given by facsimile transmission shall be deemed delivered on the day of
transmission provided telephone confirmation or receipt is obtained promptly
after completion of transmission.
o. Costs and Expenses. Unless otherwise specifically provided
herein, each party agrees to pay its own costs and expenses resulting from the
fulfillment of its respective obligations hereunder.
p. Cancellation of Tax Allocation or Tax-Sharing Agreements.
On or prior to the Distribution Date, LS shall cancel or cause to be canceled
all agreements (other than this Agreement and the Distribution Agreement)
providing for the allocation or sharing of Income or Other Taxes to which any
member of the LS Group would otherwise be bound following the Distribution.
q. Treatment of Payments. The parties agree that, in the
absence of any change in law or fact, any indemnification payments made under
this agreement shall be reported for tax purposes by the payor and the recipient
as capital contributions or dividends, as appropriate, relating back to the Tax
Period beginning before the Distribution Date.
Section 16. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE DOMESTIC SUBSTANTIVE LAWS
OF THE STATE OF DELAWARE WITHOUT REGARD TO ANY CHOICE OR CONFLICT OF LAWS,
RULES, OR PROVISIONS THAT WOULD CAUSE THE APPLICATION OF THE DOMESTIC
SUBSTANTIVE LAWS OF ANY OTHER JURISDICTION.
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed by their respective officers, each of whom is duly
authorized, all as of the day and year first above written.
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Monsanto Company
By:__________________________
Title:_______________________
[Queeny Chemical Company]
By:__________________________
Title:_______________________
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