EXHIBIT 10.26
TAX SHARING AGREEMENT
TAX SHARING AGREEMENT, made as of April 20, 1994, by and among BPC
Holding Corporation, a Delaware corporation having its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, ("Holding"), and those
corporations that have executed this Agreement and whose names and principal
places of business are set forth on Exhibit A hereto (all of which are direct or
indirect domestic subsidiaries of Holding and are includible in the consolidated
Federal income tax return of the affiliated group (within the meaning of Section
1504 of the Internal Revenue Code of 1986, as amended (the "Code")) of which
Holding is the common parent corporation (hereinafter, the "Holding Group") for
the fiscal year ended December 31, 1994), and such other parties as may become
members of the Holding Group in subsequent fiscal years for which Holding files
a consolidated Federal income tax return as the common parent corporation of an
affiliated group, and who execute this Agreement (hereinafter, sometimes
collectively referred to as the "Subsidiaries").
Holding and the Subsidiaries wish to provide for payment of the
consolidated Federal income tax and certain state and local tax liabilities of
the Holding Group by Holding; for the contribution to such payment by the
various members of the Holding Group, including Xxxxx Plastics Corporation, a
Delaware corporation having its principal place of business at 000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 ("Xxxxx"), and any direct and indirect
subsidiaries of Xxxxx ("Xxxxx Subsidiaries") that may be includible in the
Holding Group (hereinafter, Xxxxx and such Xxxxx Subsidiaries are sometimes
collectively referred to as the "Xxxxx Group"), to which such liability may be
attributable in whole or in part; and for the reimbursement by Holding to those
Subsidiaries that produce losses or credits in any fiscal year in the amount of
the benefit that such Subsidiary would be entitled to with respect to such
losses or credits on a separate return basis, or for the benefit, in whole or in
part, that such losses or credits produce for the Holding Group.
In consideration of the foregoing, and of the mutual covenants and
promises herein contained, Holding and the Subsidiaries agree as follows:
1. ALLOCATION AND PAYMENT OF TAX LIABILITY OF MEMBERS OF GROUP
(a) For the fiscal year ended December 31, 1994 and for each
subsequent fiscal year for which this Agreement may remain in effect, each
Subsidiary shall be required to pay to Holding (in the manner provided in
Paragraph 1.3 hereof), as its share of the consolidated Federal income tax
liability of the Holding Group, an amount equal to the Federal income tax
liability that would have been payable by such Subsidiary for such year if it
had filed a separate income tax return for such year and all prior years;
provided, however, that in computing separate return tax liability, no account
shall be taken of any deduction, loss or credit of any Subsidiary to the extent
that such Subsidiary has previously received payment therefor, pursuant to
Section 3 hereof. Payments shall be required to be made in each fiscal year
pursuant to this Section without regard to the actual consolidated Federal
income tax liability, if any, of the Holding Group for such year.
(b) For the purposes of this Agreement, if, in any fiscal year, one
or more Xxxxx Subsidiaries are includible in the Holding Group, all members of
the Xxxxx Group shall be deemed to constitute a single member of the Holding
Group, and any portion of the Holding Group consolidated Federal income tax
liability for any fiscal year that is apportioned to the Xxxxx Group in
accordance with this Section shall be allocated among the members thereof in
such manner as they may agree. The amount of separate return tax liability
required to be paid to Holding by Xxxxx or the Xxxxx Group in any year pursuant
to this Section shall be determined as if Xxxxx had filed a consolidated Federal
income tax return for such year and for all prior years, on behalf of itself and
all Xxxxx Subsidiaries that were includible corporations described in Section
1504(a)(1) of the Code for such year or prior years, as the case may be.
(c) Each member (or group of members) of the Holding Group shall
make payment to Holding of any consolidated Federal income tax liability
allocated to it pursuant to this Section 1, and Holding shall have sole
responsibility for making any required payments to the Internal Revenue Service
(the "IRS") in satisfaction of the consolidated Federal income tax liability of
the Holding Group for each fiscal year. For each quarter of each fiscal year
after the year ended December 31, 1994, each member (or group of members) of the
Holding Group shall make payment to Holding of any amount required to be paid
pursuant to this Section no later than the date upon which such member (or group
of members) would be required to make an installment payment of estimated income
tax to the IRS for such quarter, in accordance with Section 6655 of the Code.
The amount of any overpayment or underpayment pursuant to this Section shall be
credited against or added to, as the case may be, the amount otherwise required
to be paid for the fiscal quarter within which the amount of such overpayment or
underpayment first becomes reasonably ascertainable; provided, however, that,
upon written request (including supporting schedules) of any member (or group of
members), made after the close of any fiscal year but within the period
described in Section 6425(a)(1) of the Code, Holding shall repay to such member
(or group of members), within the period described in Section 6425(b)(1) of the
Code, the amount of any net remaining overpayment of consolidated tax liability
made by such member (or group of members) for such year.
2. PAYMENT FOR TAX BENEFITS OF MEMBERS.
(a) From and after the date hereof, if any member (or group of
members) of the Holding Group would be entitled to a refund of Federal income
taxes previously paid in any prior fiscal year, computed on a separate return
basis (in the manner described in Section 1 hereof), as a result of any losses,
deductions or credits claimed by such member (or group of members) for any
fiscal year for which this Agreement may be in effect (any such entitlement to a
refund being referred to herein as a "Separate Return Tax Benefit"), whether by
reason of a carryback of a net operating loss, or a net capital loss or tax
credit, or otherwise, then, upon written request (including supporting
schedules) of such member (or group of members), made within the period
described in Section 6411(a) of the Code, Holding shall pay the amount of such
Separate Return Tax Benefit to such member, within the period described in
Section 6411(b) of the Code. In the case of Xxxxx and Xxxxx Subsidiaries, the
amount of the Separate Return Tax Benefit
2
for any year shall be computed as if Xxxxx had filed a consolidated Federal
income tax return for such year and for all prior years on behalf of itself and
all other Xxxxx Subsidiaries that were includible corporations described in
Section 1504(a)(1) of the Code. The amount of any payment required to be made to
any member (or group of members) pursuant to this Section 2 shall be reduced by
any amount previously paid to such member (or group of members) with respect to
such losses, deductions or credits pursuant to Section 3 hereof.
3. PAYMENT FOR TAX BENEFITS OF GROUP.
(a) If, for any fiscal year during which this Agreement is in
effect, any member (or group of members) shall have a negative separate return
tax liability (hereinafter, a "Loss Member"), Holding intends to pay to such
Loss Member an amount equal to the tax benefit realized by the Holding Group for
such year (the "Group Tax Benefit") as a result of such negative separate return
tax liability. For purposes of this Agreement, the Group Tax Benefit for any
fiscal year shall be equal to the excess, if any, of (i) the sum of the separate
return tax liabilities of each member of the Holding Group having a positive
separate return tax liability for such year, over (ii) the actual consolidated
Federal income tax liability of the Holding Group for such year. For purposes of
this Section 3, "separate return tax liability" shall be computed in accordance
with, and subject to the exceptions and limitations provided in Treas. Reg. ss.
1.1552-1(a)(2)(ii). "negative separate return tax liability" shall similarly be
ascertained under the principles of Treas. Reg. ss. 1.1552-1(a)(2)(ii), as if
the Loss Member had filed a separate return for such fiscal year as its first
separate return year and allocated to such separate return year carryover and
carryback items of consolidated net operating loss, consolidated net capital
loss, consolidated unused investment credit, consolidated unused foreign tax
credit, and consolidated excess charitable contributions under the provisions of
Treas. Reg. ss. 1.1502-79. In the case of the Xxxxx Group, separate return tax
liability and negative separate return tax liability shall be computed in
accordance with the principles set forth in this Section 3, on a consolidated
basis.
(b) Within 90 days after the beginning of each fiscal year for which
this Agreement may be in effect, Holding shall give written notice to each
Subsidiary of its intention to pay one or more Loss Members in an amount equal
to all, or any portion, of their proportionate part (determined in the manner
provided in paragraph 3.1) of any Group Tax Benefit that may be realized by the
Holding Group for such year. Holding intends to make such payments on a
quarterly basis, in the manner described in paragraph 1.3 hereof; provided,
however, that all payments made pursuant to this Section 3 shall be made in the
sole discretion of Holding, and Holding shall have no obligations or liability
whatsoever with respect thereto to any Loss Member; and provided, further, that
any payment made to any Loss Member in a fiscal year pursuant to this Section 3
shall be reduced by any amount previously paid to such Loss Member with respect
to such year under Section 2 hereof.
3
4. ADJUSTMENTS.
(a) Any adjustment of income, deduction, or credit that results
after the fiscal year in question by reason of any carryback, amended return,
claim for refund, or audit shall be given effect by redetermining amounts
payable and reimbursable for such fiscal year hereunder as if such adjustment
had been part of the original determination hereunder, with interest payable in
the amounts provided in Section 6611 of the Code. Any increases in the
consolidated Federal income tax liability of the Holding Group, and any
penalties and interest imposed with respect to any consolidated Federal income
tax return filed on behalf of the Holding Group, shall be given effect by
redetermining amounts payable for such fiscal year as if such adjustment had
been part of the original determination hereunder.
5. ALTERNATIVE MINIMUM TAX.
(a) Each Subsidiary shall be required to pay to Holding, as its
share of any alternative minimum tax imposed on the Holding Group pursuant to
Section 55 of the Code, an amount of such liability that Holding shall allocate
to each Subsidiary, provided that any such amounts so allocated pursuant to this
Section 5.1 shall be allocated by Holding in a manner that is equitable and is
consistent with Section 55 and Section 1502 of the Code, and the Treasury
Regulations promulgated thereunder, including any amendments thereto and
consistent with the allocations of tax liability pursuant to Section 1 hereof.
6. STATE TAXES.
(a) If, at any time from and after the date hereof, the liability of
Holding and the Subsidiaries for any state or local income or franchise taxes is
determined on a consolidated or combined basis, this Agreement shall be applied
in like manner to determine liability for, and tax benefit payments with respect
to, such taxes.
7. TERMINATION.
(a) This Agreement may be terminated at any time upon mutual
agreement of the parties hereto; provided, however, that such termination shall
not relieve Holding of the obligation to make payments to any Subsidiary
pursuant to Section 2 hereof for any separate return tax benefit to which such
Subsidiary would have been entitled (if this Agreement had remained in effect)
as a result of any loss, deductions or credits taken by such Subsidiary for any
fiscal year for which this Agreement was in effect, nor will it relieve Holding
or the Subsidiaries of any obligations pursuant to Sections 1.3, 4, and 6
hereof.
8. EFFECTIVE DATE.
(a) This Agreement shall be effective for the taxable year of the
Holding Group ended December 31, 1994, and for all taxable years thereafter.
4
9. CAPTIONS.
(a) All section captions contained in this Agreement are for
convenience only and shall not be deemed a part of this Agreement.
10. COUNTERPARTS.
(a) This Agreement may be executed in counterparts, each of which
shall constitute an original and all of which, when taken together, shall
constitute one agreement.
11. GOVERNING LAW.
(a) This Agreement shall be governed by the laws applicable to
contracts entered into and to be fully performed within the State of New York by
residents thereof.
12. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
5
IN WITNESS WHEREOF, Holding and the Subsidiaries have executed this
Agreement as of the day and year first above written.
BPC Holding Corporation
By
/s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
Xxxxx Plastics Corporation
By
/s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
Xxxxx Iowa Corporation
By
/s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
Xxxxx CPI Plastics Corporation
By
/s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
EXHIBIT A
Name Principal Place of Business
-------------- ------------------------------
Xxxxx Plastics Corporation 000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Xxxxx Iowa Corporation 000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Xxxxx-CPI Plastics Corporation 000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
