Exhibit 10.31
TAX ALLOCATION AND INDEMNITY AGREEMENT
This TAX ALLOCATION AND INDEMNITY AGREEMENT, effective as of August 12,
1997 (the "EFFECTIVE DATE"), is made by and between ORACLE CORPORATION, a
Delaware corporation ("PARENT"), and NETWORK COMPUTER, !NC., a Delaware
corporation ("SUBSIDIARY").
RECITALS
1. Parent is the common parent of the Parent Affiliated Group, and
Parent and various of its direct and indirect subsidiaries are members of the
Parent Unitary Group (as those terms are defined below);
2. As of August 11, 1997, Navio Communications, Inc. has merged with
and into Subsidiary, Parent's previously wholly owned subsidiary, and the
parties expect that Subsidiary will continue to be a member of the Parent
Unitary Group, and Subsidiary may in the future become a member of the Parent
Affiliated Group;
3. Parent, on behalf of itself and the members of the Parent Subgroup,
and Subsidiary, on behalf of itself and the members of the Subsidiary
Subgroup (as those terms are defined below), intend in this Agreement to
provide for the allocation among themselves of Tax liabilities relating to
the period that Subsidiary and the other members of the Subsidiary Subgroup
are members of the Parent Affiliated Group and/or the Parent Unitary Group;
reimbursement for payment of Tax liabilities and use of certain Tax benefits
relating to that period; indemnification and procedures for audits and
contests with respect to subsequent adjustments of such Tax liabilities; and
cooperation in filing of returns and other matters relating to Taxes; and
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the capitalized terms set forth
below shall have the meanings set forth in this Article I:
1.1 "AFFILIATED PERIOD" means the period during which Subsidiary or any
other member of the Subsidiary Subgroup is a member of the Parent Affiliated
Group and/or the Parent Unitary Group.
1.2 "AGREEMENT" means this Tax Allocation and Indemnity Agreement, as
amended from time to time.
1.3 "PARENT AFFILIATED GROUP" means the affiliated group of
corporations (within the meaning of Section 1504 of the Code) of which Parent
is the common parent.
1.4 "PARENT SUBGROUP" means Parent and all other corporations included
in the Parent Affiliated Group and/or the Parent Unitary Group, whether
currently or hereafter existing, other than Subsidiary and other corporations
included in the Subsidiary Subgroup.
1.5 "PARENT UNITARY GROUP" means any group of corporations including
Parent filing or required to file any Combined Return.
1.6 "COMBINED RETURN" means any state, local or, if applicable, foreign
income, franchise or similar tax return which has been or will be filed by
any Parent Subgroup member or Subsidiary Subgroup member on a basis which
reports Taxes for two or more members of such subgroup using combined,
consolidated or unitary business tax reporting principles.
1.7 "CONSOLIDATED RETURN" means a consolidated U.S. federal income tax
return filed by or on behalf of an affiliated group of corporations within
the meaning of Section 1504 of the Code.
1.8 "FINAL DETERMINATION" means, with respect to any liability for
Taxes for any period, (a) a final, unappealable decision by a court of
competent jurisdiction, (b) the expiration of applicable statutes of
limitations on assessment of Taxes or filing of claims for refund, (c) the
execution of a closing agreement under section 7121 of the Code or the
acceptance by the IRS of an offer in compromise pursuant to section 7122 of
the Code (or similar agreements with tax authorities entered into under
applicable state, local or foreign tax law), (d) a binding agreement without
reservation on IRS Form 870-AD or a comparable agreement form under the laws
of any other taxing jurisdiction or (e) any other final, irrevocable and
unappealable determination of Taxes for such period.
1.9 "IRS" means the United States Internal Revenue Service or any
successor thereto.
1.10 "TAX" or "TAXES" means any or all taxes, however denominated,
including any interest, penalties or other additions to tax that may become
payable in respect thereof, imposed by any federal, territorial, state, local
or foreign government or any agency or political subdivision of any such
government, which taxes shall include, without limiting the generality of the
foregoing, all income or profits taxes (including but not limited to,
federal, state and foreign income taxes), payroll and employee withholding
taxes, unemployment insurance contributions, social security taxes, sales and
use taxes, ad valorem taxes, excise taxes, franchise taxes, gross receipts
taxes, business license taxes, occupation taxes, real and personal property
taxes, stamp taxes, environmental taxes, transfer taxes, and other
governmental charges or obligations of the same or of a similar nature to any
of the foregoing, which are required to be paid, withheld or collected.
1.11 "SUBSIDIARY SUBGROUP" means Subsidiary and all of its direct and
indirect subsidiaries, whether currently or hereafter existing, which would
be included in an affiliated group of corporations (within the meaning of
section 1504 (a) of the Code) and/or combined, consolidated or unitary state
or other tax filing groups of corporations of which Subsidiary would be the
ultimate parent corporation if Subsidiary were not a member of the Parent
Affiliated Group or Parent Unitary Group, respectively.
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ARTICLE II
FILING OF RETURNS
2.1 CONSOLIDATED RETURNS AND COMBINED RETURNS.
(a) Parent shall have exclusive authority and responsibility to
prepare and file Consolidated Returns and Combined Returns on behalf of the
Parent Affiliated Group and Parent Unitary Group, respectively (as well as
any other documents, statements or elections required to be filed or included
with such Consolidated Returns or Combined Returns), for all taxable years
(or portions thereof) included in the Affiliated Period. Parent shall have
sole authority and discretion to determine (i) the manner in which such
Consolidated Returns and Combined Returns (and related documents) shall be
prepared and filed, including without limitation the manner in which any item
of income, gain, loss, deduction or credit included in such returns shall be
reported and the corporations appropriately included in the Parent Unitary
Group filing a Combined Return, (ii) whether any extensions of time to file a
Consolidated Return or Combined Return shall be requested, and (iii) the
elections that will be made in such returns on behalf of the Parent
Affiliated Group, the Parent Unitary Group or any members thereof (including
members of the Subsidiary Subgroup). Subject to the preceding provisions of
this Section 2.1(a), Parent shall provide draft copies of such returns to
Subsidiary a reasonable period of time prior to filing and shall permit
subsidiary to comment on any material matters relating to Subsidiary included
therein, provided that Parent shall have no obligation to make changes to
such returns in response to such comments.
(b) Subsidiary and each member of the Subsidiary Subgroup hereby
irrevocably appoint Parent as their agent and attorney-in-fact to take such
actions (including the execution of documents on behalf of Subsidiary or any
other member of the Subsidiary Subgroup) as may be appropriate to effectuate
the filing of such Consolidated Returns and Combined Returns. Subsidiary and
each Subsidiary Subgroup member agree to file such consents, elections and
other documents, provide information as requested by Parent and otherwise
cooperate with Parent as necessary to carry out the purpose of this section.
(c) Parent shall be liable, and shall indemnify Subsidiary and
each other member of the Subsidiary Subgroup, for any penalties or other
damages attributable to the failure of Parent to make timely filings of
Consolidated Returns or Combined Returns for the Affiliated Period or full
and timely payment of all amounts shown to be due thereon, provided that
Subsidiary and the Subsidiary Subgroup members have complied with their
obligations to make Tax payments to, provide information to, and otherwise
cooperate on a timely basis with Parent as provided under the provisions of
this Agreement.
2.2 OTHER RETURNS.
(a) Except as otherwise provided herein or as the parties hereto
may otherwise agree, Subsidiary shall have exclusive authority and
responsibility to prepare and file all tax returns by or on behalf of it and
any member of the Subsidiary Subgroup, other than Consolidated Returns and
Combined Returns subject to the provisions of Section 2.1. Parent shall
provide (and shall cause each Parent Subgroup member and their
representatives to provide)
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reasonable access to books, records, returns and other information to the
extent necessary to permit Subsidiary timely to prepare and file such tax
returns and shall otherwise cooperate as reasonably requested by Subsidiary
in connection with the preparation and filing of such returns.
(b) Subsidiary shall be liable, and shall indemnify Parent and
each other member of the Parent Subgroup, for any penalties or other damages
attributable to the failure of Subsidiary to make timely filings of tax
returns for which it is responsible under this Section 2.2 or full and timely
payment of amounts shown to be due thereon, provided that Parent and the
Parent Subgroup members have complied with their obligations to provide
information and otherwise cooperate as provided hereunder.
ARTICLE III
ALLOCATION OF LIABILITIES FOR TAXES
3.1 FEDERAL INCOME TAXES FOR PERIODS COMMENCING ON AND AFTER THE
EFFECTIVE DATE.
(a) For each taxable period commencing on or after the Effective
Date in which Subsidiary and any other members of the Subsidiary Subgroup are
included in the Parent Affiliated Group, the Subsidiary Subgroup shall be
allocated and Subsidiary shall pay to Parent the Subsidiary Subgroup's
federal income Tax liability, if any (including any alternative minimum tax
or environmental tax), as determined under this Section 3.1. Such federal Tax
liability shall equal the hypothetical separate return tax liability of such
subgroup, as determined in accordance with the provisions of Treasury
Regulations Section 1.1552-1(a)(2)(ii) (treating references to a "member"
therein as references to the Subsidiary Subgroup, and including the
adjustments under clauses (a) - (i) thereof) as if the Subsidiary Subgroup
had filed a separate consolidated federal income tax return. If the
Subsidiary Subgroup's federal income Tax liability as so determined is zero,
then Parent shall pay to Subsidiary the excess, if any, of the Parent
Subgroup's federal income Tax liability, determined as if the Parent Subgroup
had filed a separate consolidated federal income tax return for such taxable
period or portion thereof (and any taxable year of the Parent Subgroup to
which a net operating loss or other tax item of the Subsidiary Subgroup is
carried) under the same principles as set forth in the preceding sentence,
over the actual federal income Tax liability of the Parent Affiliated Group
for such taxable period or portion thereof (or such year to which such item
is carried).
(b) For purposes of determining allocation of Tax liabilities and
payment obligations for tax periods commencing on or after the Effective
Date, (i) any Taxes attributable to the restoration of an excess loss account
or intercompany gain in connection with any event causing termination of
membership by Subsidiary and other members of the Subsidiary Subgroup in the
Parent Affiliated Group shall be allocated to whichever subgroup includes the
corporation required to restore such item under applicable Treasury
Regulations pursuant to Section 1502 of the Code, (ii) the benefit of the
graduated Tax rates provided under Section 11 of the Code and any alternative
minimum tax exemption amount under Section 55 of the Code shall be allocated
to the Subsidiary Subgroup in proportion to the ratio of the Subsidiary
Subgroup's federal Tax liability to the total federal Tax liability of the
Parent Affiliated Group (computed without regard to such benefit), and (iii)
items not otherwise specifically addressed hereunder
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shall be allocated between the Subsidiary Subgroup and the Parent Subgroup in
such manner that reflects the provisions and purposes of this Agreement as
determined by Parent in its reasonable discretion.
(c) The Subsidiary Subgroup's federal Tax liability for the
taxable year during or with which the Affiliated Period ends shall be
determined in accordance with the provisions of Treasury Regulations Section
1.1502-76(b)(2) by closing the books of Subsidiary and the Subsidiary
Subgroup members as of the end of the last day of the Affiliated Period and
taking into account only items accruing during the portion of the taxable
year ending on such date in computing such liability. Items shall not be
pro-rated in accordance with clauses (ii) or (iii) of such section of the
Treasury Regulations except to the extent Parent in its discretion determines
that it is impracticable to allocate particular items in accordance with the
preceding sentence.
(d) The parties acknowledge that the allocation of federal Tax
liability provided for by this Section 3.1 is for purposes of determining the
parties' actual payment obligations to each other with respect to Taxes of
the Parent Affiliated Group for the Affiliated Period and not for purposes of
computing earnings and profits pursuant to Section 1552 of the Code and
recognize that such allocation may differ from the allocation provided by
Section 1552 for earnings and profits purposes.
3.2 STATE INCOME AND FRANCHISE TAXES FOR PERIODS COMMENCING ON OR AFTER
THE EFFECTIVE DATE.
(a) For each taxable period (or portion thereof) commencing on or
after the Effective Date for which Subsidiary and/or any other members of the
Subsidiary Subgroup are included in any Combined Return filed by the Parent
Unitary Group, the Subsidiary Subgroup shall be allocated and Subsidiary
shall pay to Parent the state income Tax liability of Subsidiary and/or such
other Subsidiary Subgroup members that are so included, as determined under
this Section 3.2. Such state income Tax liability shall equal the
hypothetical state income tax liability of the Subsidiary Subgroup members so
included, computed as if they filed a Combined Return (or if only one such
member is so included, a separate state income or franchise tax return)
including only such included member(s) for such taxable period (or portion
thereof). To the extent that the same or analogous federal consolidated
reporting principles as are referred to in Section 3.1 apply for purposes of
filing such Combined Returns, then such principles shall also apply for
purposes of determining the Subsidiary Subgroup's state Tax liability in
respect of any Combined Return of the Parent Unitary Group. If any state
income or franchise Tax liability of the Subsidiary Subgroup (other than any
applicable minimum taxes) for such taxable period (or portion thereof) as so
determined is zero, then Parent shall pay to Subsidiary the excess, if any,
of the Parent Subgroup's state income Tax liability for such taxable period
(or portion thereof), determined as if the Parent Subgroup had filed a
separate Combined Return not including any Subsidiary Subgroup members, over
the actual state income Tax liability of the Parent Unitary Group for such
taxable period (or portion thereof). Parent shall have the discretion to make
determinations of each subgroup's liability for Taxes under this Section
3.2(a) in any manner that it deems consistent with the applicable state and
local Tax reporting principles and the purposes of this Agreement. For
purposes of apportioning the Parent Subgroup's and
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Subsidiary Subgroup's taxable income or loss for a taxable period commencing
before and ending after the Effective Date, the amount of such taxable income
or loss treated as attributable to the portion of the period commencing with
the Effective Date shall be determined as though such taxable period were two
separate taxable periods, the first of which ended the day prior to the
Effective Date and the second of which commenced with the Effective Date. The
provisions of this Section 3.2(a) will be applied separately to each state or
other applicable taxing jurisdiction.
(b) Subsidiary shall be responsible for payment of any state Taxes
due from it or any members of the Subsidiary Subgroup, and Parent shall be
responsible for payment of any state Taxes due from Parent or any members of
the Parent Subgroup, in connection with state income or franchise tax returns
that are not Combined Returns.
3.3 OTHER TAXES FOR PERIODS COMMENCING ON OR AFTER THE EFFECTIVE DATE.
Any Taxes for taxable periods commencing on or after the Effective Date,
other than Taxes allocated under Sections 3.1 and 3.2, shall be the
responsibility of the party incurring such Tax under applicable law.
Notwithstanding the foregoing, in the event that the applicable law of any
foreign taxing jurisdiction provides for filing of Combined Returns including
one or more members of each of the Subsidiary Subgroup and the Parent
Subgroup, then principles similar to those set forth above in Section 3.2(a)
shall be applied for purposes of determining an appropriate allocation of
Taxes required to be reported with such Combined Returns.
ARTICLE IV
PAYMENT AND INDEMNIFICATION OF TAXES
4.1 ESTIMATED TAX PAYMENTS. Parent shall have the right to assess
Subsidiary for the Subsidiary Subgroup's share of any estimated Tax payment
liability incurred by the Parent Affiliated Group or the Parent Unitary Group
for any taxable year (or portion thereof) included in the Affiliated Period,
as determined by Parent in its reasonable discretion applying the principles
of Sections 3.1 and 3.2. For this purpose, Subsidiary' share of each such
estimated Tax payment liability shall not exceed the Parent Affiliated
Group's or Parent Unitary Group's actual estimated Tax payment liability for
the relevant period and Parent shall have no obligation to make any payment
to Subsidiary. Parent shall provide Subsidiary with notice of its estimated
Tax payment obligation hereunder at least five days prior to the due date
thereof as specified in such notice, together with a summary of the basis for
the calculation of such obligation, and Subsidiary shall pay the amount owed
no later than such due date. Any payments made by Subsidiary under this
Section 4.1 shall be credited against the final Tax payment obligations due
for the entire taxable year (or portion thereof) under Section 4.2.
4.2 FINAL TAX PAYMENTS. As soon as practicable after the end of each
taxable year (or portion thereof) included in the Affiliated Period, but in
no event later than 30 days following the due date (including extensions) for
filing the applicable Consolidated Return or Combined Return therefor, Parent
shall prepare and submit to Subsidiary a statement setting forth the final
amount determined by Parent to be due from Subsidiary or Parent, as the case
may be, in accordance with the provisions of Sections 3.1 and 3.2, taking
into account any amounts credited to
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Subsidiary under Section 4.1. Such statement shall include sufficient
supporting information to show the basis for the amount determined. Unless
Subsidiary objects to the amount determined, such amount shall be paid no
later than five days thereafter. In the event of a dispute, such dispute
shall be resolved by a nationally recognized independent accounting firm
selected by Parent and approved by Subsidiary, which approval shall not be
unreasonably withheld.
4.3 INDEMNIFICATION. Provided that Subsidiary has made the payments to
Parent required under this Agreement, Parent shall be responsible for, shall
protect, indemnify and hold harmless Subsidiary and each Subsidiary Subgroup
member from, and shall be entitled to any refunds of (i) any Taxes imposed on
the Parent Affiliated Group (or any member thereof) or the Parent Unitary
Group (or any member thereof), including without limitation any obligation to
contribute to the payment of any such Taxes (other than as provided in this
Agreement) and any liability arising from the several liability for Taxes of
an affiliated group under Treasury Regulations Section 1.1502-6 or any
analogous provisions of other applicable law, and (ii) any other Taxes
imposed on Parent or any member of the Parent Subgroup arising before, during
or after the Affiliated Period. Except as provided in the preceding sentence,
Subsidiary shall be responsible for, shall protect, indemnify and hold
harmless Parent and each Parent Subgroup member from, and shall be entitled
to any refunds of, Taxes imposed on the Subsidiary Subgroup or any member
thereof.
ARTICLE V
SUBSEQUENT ADJUSTMENTS
5.1 SUBSEQUENT ADJUSTMENTS. In the event that a Final Determination
adjusts any items of income, gain, loss, deduction or credit of the Parent
Affiliated Group, the Parent Unitary Group or any member thereof for any
taxable year (or portion thereof) included in the Affiliated Period, then the
payment obligations under Article III of this Agreement shall be redetermined
to reflect such adjustments and Parent shall pay Subsidiary or Subsidiary
shall pay Parent, as the case may be, the difference between the amounts owed
under such section as so adjusted and the amounts owed as originally
determined, together with an appropriate share of any interest actually due
or received in respect of such adjustment. Any payment required pursuant to
this Article V shall be made promptly after the occurrence of such Final
Determination.
ARTICLE VI
CONTROVERSIES
6.1 TAXES OF PARENT AFFILIATED GROUP OR UNITARY GROUP. Subject to the
remaining provisions of this Section 6.1, Parent shall have authority to
represent Subsidiary and each Subsidiary Subgroup member in any audit,
examination or other controversy before the IRS or any other governmental
authority or court regarding the Taxes of the Parent Affiliated Group or
Parent Unitary Group for all taxable years or portions thereof included in or
prior to the Affiliated Period. Subsidiary shall be permitted, on behalf of
itself or of any members of the Subsidiary Subgroup, to consult with Parent
to the extent the controversies relate to items of the Subsidiary Subgroup or
items for which Subsidiary is or may be obligated to indemnify Parent or a
member of the Parent Subgroup hereunder. Parent shall timely notify
Subsidiary of any con-
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troversy relating to Tax items of Subsidiary or any other member of the
Subsidiary Subgroup (or items for which Subsidiary may otherwise be required
to indemnify Parent or a Parent Subgroup members hereunder) and promptly
provide Subsidiary with copies of all correspondence relating to such
controversy.
6.2 OTHER TAXES. Except as the parties may otherwise agree, each of
Parent and Subsidiary shall have exclusive authority to represent itself and
its respective subgroup members in any controversies relating to Taxes of its
respective subgroup (or any members thereof), other than Taxes referred to in
Section 6.1.
6.3 COOPERATION. Parent and Subsidiary shall cooperate with each other,
and shall cause their respective subgroup members and representatives also to
cooperate, in the conduct of any controversy relating to Taxes. Such
cooperation shall include, without limitation, (a) execution of powers of
attorney or other documents, making elections, filing claims for refund, and
receiving funds, and (b) making available to the other party, during normal
business hours and on reasonable terms, all books, records (including, but
not limited to, workpapers and schedules), information and employees
reasonably requested and necessary or useful in connection with such
controversy.
6.4 RECORDS. Parent and Subsidiary agree that all records, including but
not limited to, tax returns, supporting schedules, workpapers, correspondence
and other documents within their possession or the possession of the members of
their respective subgroups and relating to Taxes arising during the Affiliated
Period, shall be retained for as long as such records may be material to the
determination of liabilities or refunds of such Taxes and shall be made
reasonably available to the other party upon request during normal business
hours for inspection and copying. Prior to destroying any such records, the
party in possession thereof shall notify the other of such intent and shall
offer to deliver such records to the other.
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ARTICLE VII
CARRYBACKS
7.1 CARRYBACKS. If Subsidiary or any member of the Subsidiary Subgroup
incurs any deduction, loss, or credit in a period after the Affiliated Period
that under applicable law is not required to be carried back but is carried
back to a Consolidated Return or Combined Return of the Parent Affiliated
Group or Parent Combined Group for a taxable year (or portion thereof)
occurring during the Affiliated Period, Parent and Subsidiary shall discuss
an appropriate payment, if any, to be made by Parent to Subsidiary in the
event that there is any reduction of Taxes actually realized by the Parent
Affiliated Group (or any member thereof) or Parent Unitary Group (or any
member thereof) as a result of such carryback. Subsidiary shall be entitled
to determine whether or not to waive the right to carry back such item. If
Subsidiary is not permitted under applicable law to waive the right to
carryback such item and the carryback of such item results in an actual
reduction of Taxes of the Parent Affiliated Group (or any member thereof) or
Parent Unitary Group (or any member thereof), Parent shall pay Subsidiary the
amount of such reduction as determined by Parent in its reasonable
discretion, taking into account the principles of Section 2.1(a) and 3.1(a).
Any payment required under this Section 7.1 shall be made within 30 days
after the Parent Affiliated Group or Parent Unity Group, as the case may be,
actually receives the benefit of such reduction of Taxes.
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IN WITNESS WHEREOF, the parties hereto have caused this Tax Allocation
Agreement to be executed by their duly authorized representatives.
PARENT
ORACLE CORPORATION
By: /s/ XXXXXXX X. XXXXX
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Name: XXXXXXX X. XXXXX
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Title: VP TAX
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SUBSIDIARY
NETWORK COMPUTER, INC.
By: /s/ XXXXXXXX XXXXXXXX
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Name: XXXXXXXX XXXXXXXX
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Title: CEO & PRESIDENT
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[LOGO]
February 16, 1999
VIA FEDERAL EXPRESS
Xxx Xxxxx
ORACLE CORPORATION
000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx 00000
RE: TAX ALLOCATION AND INDEMNITY AGREEMENT BETWEEN ORACLE CORPORATION
("ORACLE") AND NETWORK COMPUTER, INC. ("NCI")
Dear Xx. Xxxxx:
Enclosed herewith please find one fully executed original of the
above-referenced agreement for your files.
If you have any questions, please call me at (000) 000-0000.
Very truly yours,
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, Paralegal to
Xxxxx Xxxxxx, Vice President/CFO
/jlj
Encls.
