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EXHIBIT 10.19
TAX SHARING AGREEMENT
This TAX SHARING AGREEMENT ("this Agreement") is made as of the 10th day
of October, 1997, and is between BYB Properties, Inc., a Delaware corporation,
whose sole office is located at Xxxxx 000, 000 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000
("Subsidiary"), and Back Yard Burgers, Inc., a Delaware corporation whose
principal office is located at 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000
("Parent").
BACKGROUND
Subsidiary is a member of an "affiliated group," as defined in ss.1504
of the Internal Revenue Code of 1986, as amended from time to time, and the
regulations thereunder (the "Code"), of which Parent is the common parent
corporation.
Subsidiary shall properly execute and deliver to parent, upon written
request from Parent, a Form 1122, "Authorization and Consent of Subsidiary
Corporation to be Included in a Consolidated Tax Return," in order to be
properly included in the consolidated U.S. federal income tax return of Parent.
The purpose of this Agreement is to set forth the obligations of
Subsidiary under the consolidated reporting rules of the Code, as directed by
Parent, including without limitation the provisions of Treas. Regs.
ss.1.1502-33(d)(2) and ss.1.1552-1(b)(2), and to provide for payment by
Subsidiary to Parent of all such tax liability properly allocated to Subsidiary.
AGREEMENT
For valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound, the parties agree as follows:
ss.1. This Agreement is to be effective beginning with the tax year of
Parent ending January 3, 1998. The term of this Agreement shall continue until
terminated in accordance with the terms hereof.
ss.2. Subsidiary agrees to comply with all requests of Parent in
connection with this Agreement and pursuant to the consolidated reporting
requirements of the Code.
ss.3. Subsidiary agrees to execute, or cause the execution of any
further documentation, including returns or elections, necessary or appropriate
in connection with or pursuant to the terms of this Agreement.
ss.4. In order to fulfill subsidiary's obligations under this Agreement
and the Code, Subsidiary agrees to pay to Parent within fifteen (15) days of
receipt of written request therefor, all amounts sufficient to pay for
Subsidiary's allocable share of U.S. federal income tax liabilities as
calculated pursuant to Treas. Reg. ss.1.1552-1, as may be adopted by Parent from
time to time.
ss.5. Parent is authorized to invoice Subsidiary as frequently as once
per fiscal quarter for federal income tax liability actually accrued or
estimated hereunder. Subsidiary also agrees, requested to do so by Parent, to
pay such amounts to a member of the affiliated group other than Parent if Parent
has designated another affiliate to serve as the affiliate responsible for
collecting and remitting taxes on behalf of the affiliated group. Subsidiary
further agrees to accept instructions, remit payments and deliver any report,
document, or other information pertaining to this Agreement or the transactions
contemplated by this Agreement to Parent's management company or other designee
if requested to do so by Parent.
ss.6. Parent's determination of the Subsidiary's allocable share of
federal income tax liability shall be conclusive. Any U.S. federal tax liability
of Subsidiary which arises by reason of the provisions of this Agreement will be
reported by Subsidiary in accordance with generally accepted accounting
principles.
ss.7. If adjustments are made to a consolidated U.S. federal income tax
return that result in a final deficiency or overpayment that would have required
a larger or smaller payment by Subsidiary to Parent, or by Parent to Subsidiary,
if made
TAX SHARING AGREEMENT
BYB PROPERTIES, INC.
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on the original return in accordance with the method of computations described
herein, Parent shall pay to Subsidiary, or Subsidiary shall pay to Parent,
within fifteen (15) days of receipt of written request therefor, an appropriate
amount to reflect such deficiency or overpayment, as the case may be.
ss.8. This Agreement shall be applicable only with respect to periods
for which Subsidiary and Parent are members of the same affiliated group filing
a consolidated U.S. federal income tax return. No adjustments shall be made with
respect to periods for which either Subsidiary or Parent files a separate return
or is a member of another affiliated group filing a consolidated return for
federal income tax purposes.
ss.9. This Agreement may be terminated by mutual written agreement, or
if either party ceases to be a member of the same affiliated group, or if the
affiliated group to which Parent and Subsidiary belong elects not to file a
consolidated U.S. federal return for any taxable year. However, notwithstanding
termination, this Agreement shall remain in effect with respect to any period
during the tax year in which termination occurred for which the income of
Subsidiary is includable in such consolidated return of parent. Notwithstanding
any such termination, if upon audit by the Internal Revenue Service of the
consolidated return for a period during which Subsidiary and Parent were members
of an affiliated group, or as a result of any final administrative or judicial
proceedings for any such period, there is any adjustment to U.S. federal taxable
income, special deductions or credits, then such resulting change in the
consolidated return will be allocated to Subsidiary in accordance with the
provisions of this Agreement.
ss.10. This Agreement has been executed and delivered by Parent and
Subsidiary (and will be deemed to be made) in the State of Delaware. This
Agreement will be interpreted and the rights and liabilities of the parties
hereto determined in accordance with the laws of the State of Delaware. Each of
Parent and Subsidiary hereby submits to the jurisdiction of any state or federal
court located within New Castle county, Delaware, and consents that all service
of process be made by certified mail directed to the relevant party at its
address set forth above.
ss.11. This Agreement shall not be assigned without the written consent
of the non-assigning party.
ss.12. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the remaining provisions of this Agreement.
ss.13. This Agreement may not be amended or modified without the
written consent of each party hereto.
ss.14. Each party agrees to pay its respective expenses incurred with
respect to this Agreement and the consummation of the transactions contemplated
thereby.
ss.15. This Agreement may be executed in counterparts, each of which
when so executed and delivered shall constitute a complete and original
instrument but all of which together shall constitute one and the same
agreement, and it shall not be necessary when making proof of this Agreement or
any counterpart thereof to account for any other counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the 10th day of October, 1997.
BYB PROPERTIES, INC. BACK YARD BURGERS, INC.
BY: BY:
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Name: Name:
Title: Title:
TAX SHARING AGREEMENT
BYB PROPERTIES, INC.
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