Exhibit 10
TAX SHARING AGREEMENT
BETWEEN
IVEX PACKAGING CORPORATION
AND
PACKAGING DYNAMICS CORPORATION
JULY 1, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS
Section 1.1 Code........................................................1
Section 1.2 Distribution Agreement......................................1
Section 1.3 Distribution Date...........................................1
Section 1.4 Distribution................................................2
Section 1.5 Final Determination.........................................2
Section 1.6 Indemnified Party...........................................2
Section 1.7 Indemnifying Party..........................................2
Section 1.8 IRS.........................................................2
Section 1.9 Ivex Consolidated Group.....................................2
Section 1.10 Ivex Consolidated Return Period....................2
Section 1.11 Ivex Consolidated Return...........................3
Section 1.12 Ivex Consolidated Tax Liability....................3
Section 1.13 Merger Agreement...................................3
Section 1.14 Merger.............................................3
Section 1.15 Packaging Dynamics.................................3
Section 1.16 PD Letter Agreement................................3
Section 1.17 Person.............................................3
Section 1.18 Post-Distribution Taxable Period...................3
Section 1.19 Pre-Distribution Taxable Period....................3
Section 1.20 Proceeding.........................................3
Section 1.21 Refund.............................................3
Section 1.22 Straddle Period....................................3
Section 1.23 Subsidiary.........................................3
Section 1.24 Tax Benefit........................................4
Section 1.25 Tax Item...........................................4
Section 1.26 Tax Liability......................................4
Section 1.27 Tax Return.........................................4
Section 1.28 Tax................................................4
Section 1.29 Taxing Authority...................................4
Section 1.30 Treasury Regulation................................4
ARTICLE II PREPARATION AND FILING OF TAX RETURNS; PAYMENT OF TAX
Section 2.1 Tax Returns of Ivex.........................................4
Section 2.2 Tax Liability...............................................5
Section 2.3 Packaging Dynamics Separate Returns and Tax Liability.......5
ARTICLE III INDEMNIFICATION FOR TAXES
Section 3.1 Indemnification by Ivex.....................................5
Section 3.2 Indemnification by Packaging Dynamics.......................6
ARTICLE IV TAX CONTESTS
Section 4.1 Notification................................................6
Section 4.2 Proceedings Involving Ivex..................................6
ARTICLE V REFUNDS AND TAX SHARING AGREEMENTS
Section 5.1 Refunds.....................................................7
Section 5.2 Tax Sharing Agreements......................................8
Section 5.3 Compensation Deductions.....................................8
ARTICLE VI COOPERATION AND EXCHANGE OF INFORMATION
Section 6.1 Cooperation.................................................8
Section 6.2 Retention of Records........................................9
ARTICLE VII PAYMENTS
Section 7.1 Method of Payment..........................................10
Section 7.2 Interest...................................................10
Section 7.3 Characterization of Payments...............................10
Section 7.4 Time of Indemnification Payment............................11
ARTICLE VIII MISCELLANEOUS PROVISIONS
Section 8.1 Entire Agreement...........................................11
Section 8.2 Governing Law..............................................11
Section 8.3 Notices....................................................11
Section 8.4 Amendment..................................................11
Section 8.5 Counterparts...............................................11
Section 8.6 Binding Effect; Assignment.................................11
Section 8.7 Severability...............................................12
Section 8.8 Waiver of Breach...........................................12
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Section 8.9 Amendment and Execution....................................12
Section 8.10 Authority.........................................12
Section 8.11 Descriptive Headings..............................12
Section 8.12 Gender and Number.................................12
Section 8.13 Additional Assurances.............................13
Section 8.14 Force Majeure.....................................13
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TAX SHARING AGREEMENT
This Tax Sharing Agreement (this "Agreement") is entered into
as of July 1, 2002, by and between Ivex Packaging Corporation, a Delaware
corporation ("Ivex"), and Packaging Dynamics Corporation, a Delaware corporation
and wholly-owned subsidiary of Ivex ("Packaging Dynamics"). Ivex and Packaging
Dynamics are sometimes referred to herein individually as a "party" or
collectively as the "parties."
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger dated
March 18, 2002 (the "Merger Agreement") by and between Ivex, Alcoa Inc., a
Pennsylvania corporation ("Alcoa"), and AI Merger Sub Inc., a Delaware
corporation and wholly-owned subsidiary of Alcoa, Alcoa will acquire all of the
outstanding stock of Ivex by merging AI Merger Sub Inc. with and into Ivex (the
"Merger");
WHEREAS, as a condition of, and immediately prior to, the
Merger, Ivex will declare a pro rata distribution to its stockholders of all of
the capital stock of Packaging Dynamics (the "Distribution");
WHEREAS, at the close of the business on the date the
Distribution is effective, Packaging Dynamics will cease to be a member of the
Ivex Consolidated Group (as defined below); and
WHEREAS, as a result of the Distribution the parties hereto
wish to provide for the payment of Taxes (as defined herein) and entitlement to
refunds thereof, allocate responsibility and provide for cooperation in
connection with the filing of returns in respect of Taxes, and provide for
certain other matters relating to Taxes.
NOW, THEREFORE, in consideration of the agreements herein
contained and intending to be legally bound hereby, Ivex and Packaging Dynamics
hereby agree as follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement the following capitalized
terms are defined in this Article I.
Section 1.1 Code. "Code" means the Internal Revenue Code of
1986, as amended.
Section 1.2 Distribution Agreement. "Distribution Agreement"
means the Distribution Agreement dated as of March 18, 2002 between the parties.
Section 1.3 Distribution Date. "Distribution Date" has the
meaning set forth in Section 1.01 of the Distribution Agreement.
Section 1.4 Distribution. "Distribution" has the meaning set
forth in the Recitals hereof.
Section 1.5 Final Determination. "Final Determination" means
the final resolution of liability for any Tax, which resolution may be for a
specific issue or adjustment or for a taxable period: (i) by Internal Revenue
Service Form 870 or 870-AD (or any successor forms thereto), on the date of
acceptance by or on behalf of the taxpayer, or by a comparable form under the
laws of a state or local Taxing Authority, except that a Form 870 or 870-AD or
comparable form shall not constitute a Final Determination to the extent that it
reserves (whether by its terms or by operation of law) the right of the taxpayer
to file a claim for Refund or the right of the Taxing Authority to assert a
further deficiency in respect of such issue or adjustment or for such taxable
period (as the case may be); (ii) by a decision, judgment, decree, or other
order by a court of competent jurisdiction, which has become final and
unappealable; (iii) by a closing agreement or accepted offer in compromise under
Sections 7121 or 7122 of the Code, or a comparable agreement under the laws of a
state or local Taxing Authority; (iv) by any allowance of a Refund or credit in
respect of an overpayment of Tax, but only after the expiration of all periods
during which such Refund may be recovered (including by way of offset) by the
jurisdiction imposing such Tax; or (v) by any other final disposition, including
by reason of the expiration of the applicable statute of limitations or by
mutual agreement of the parties.
Section 1.6 Indemnified Party. "Indemnified Party" means any
Person seeking indemnification pursuant to the provisions of this Agreement.
Section 1.7 Indemnifying Party. "Indemnifying Party" means any
party hereto from which any Indemnified Party is seeking indemnification
pursuant to the provisions of this Agreement.
Section 1.8 IRS. "IRS" means the United States Internal
Revenue Service or any successor thereto, including, but not limited to its
agents, representatives, and attorneys.
Section 1.9 Ivex Consolidated Group. "Ivex Consolidated Group"
means Ivex and, with respect to federal Taxes, the other members of the
affiliated group of corporations (within the meaning of Section 1504(a) of the
Code) of which Ivex was the common parent prior to the Merger, and with respect
to state or local Taxes, any other corporations with which Ivex filed or files a
consolidated, combined or unitary Tax Return with Ivex as the common parent.
Section 1.10 Ivex Consolidated Return Period. "Ivex
Consolidated Return Period" means a taxable period that ends on, before, or
includes the Distribution Date for which a consolidated, combined or unitary (as
applicable) federal, state or local Tax Return is filed or required to be filed
by the Ivex Consolidated Group or by a member thereof (except any Tax Return
filed or required to be filed by Packaging Dynamics with respect to any
Post-Distribution Taxable Period).
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Section 1.11 Ivex Consolidated Return. "Ivex Consolidated
Return" has the meaning set forth in Section 2.1(a) of this Agreement.
Section 1.12 Ivex Consolidated Tax Liability. "Ivex
Consolidated Tax Liability" means the consolidated, combined or unitary Tax
Liability of the Ivex Consolidated Group.
Section 1.13 Merger Agreement. "Merger Agreement" has the
meaning given that term in the Recitals hereof.
Section 1.14 Merger. "Merger" has the meaning given that term
in the Recitals hereof.
Section 1.15 Packaging Dynamics. "Packaging Dynamics" has the
meaning set forth in the preamble and shall include for all purposes of this
Agreement its Subsidiaries.
Section 1.16 PD Letter Agreement. "PD Letter Agreement" has
the meaning set forth in Section 1.01 of the Distribution Agreement.
Section 1.17 Person. "Person" means any individual,
partnership, joint venture, limited liability company, corporation, association,
joint stock company, trust, unincorporated organization or similar entity or a
governmental authority or any department or agency or other unit thereof.
Section 1.18 Post-Distribution Taxable Period.
"Post-Distribution Taxable Period" means a taxable period (and in the case of a
Straddle Period, the portion of a taxable period) that, to the extent it relates
to Packaging Dynamics and its Subsidiaries, begins after midnight on the
Distribution Date.
Section 1.19 Pre-Distribution Taxable Period.
"Pre-Distribution Taxable Period" means a taxable period (and in the case of a
Straddle Period, the portion of a taxable period) ending before the Distribution
Date or at the end of the day on the Distribution Date.
Section 1.20 Proceeding. "Proceeding" means any audit or other
examination, judicial or administrative proceeding relating to liability for, or
Refunds or adjustments with respect to, Taxes.
Section 1.21 Refund. "Refund" means any refund of Taxes,
including any reduction in Tax Liabilities by means of a credit, offset, use of
an overpayment or otherwise.
Section 1.22 Straddle Period. "Straddle Period" means any
taxable period that begins on or before and ends after the Distribution Date.
Section 1.23 Subsidiary. "Subsidiary" has the meaning set
forth in Section 1.01 of the Distribution Agreement.
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Section 1.24 Tax Benefit. "Tax Benefit" means a reduction in
the Tax Liability of a taxpayer (or of the Ivex Consolidated Group) for any
taxable period. A Tax Benefit shall be deemed to have been realized or received
from a Tax Item in a taxable period only if and to the extent that the Tax
Liability of the taxpayer (or of the Ivex Consolidated Group) for such period,
after taking into account the effect of the Tax Item on the Tax Liability of
such taxpayer in the current period and all prior periods, is more than it would
have been if such Tax Liability were determined without regard to such Tax Item.
Section 1.25 Tax Item. "Tax Item" means any item of income,
gain, loss, deduction or credit, or other attribute that may have the effect of
increasing or decreasing any Tax.
Section 1.26 Tax Liability. "Tax Liability" means all
liabilities for Taxes.
Section 1.27 Tax Return. "Tax Return" means any return,
report, certificate, filing, statement, questionnaire, declaration, form or
similar statement or document (including any related or supporting information
or schedule attached thereto and any information return, amended tax return,
claim for refund or declaration of estimated tax) required to be supplied to, or
filed with, a Taxing Authority or jurisdiction (foreign or domestic) in
connection with the determination, assessment or collection of any Tax or the
administration of any laws, regulations or administrative requirements relating
to any Tax.
Section 1.28 Tax. "Tax" includes any tax, charge, fee, impost,
levy or other assessment imposed by any federal, state, local or foreign Taxing
Authority, including, but not limited to, income, gross receipts, excise,
property, sales, use, license, capital stock, transfer, franchise, payroll,
withholding, social security, value added and other taxes, and any interest,
penalties or additions attributable thereto.
Section 1.29 Taxing Authority. "Taxing Authority" means any
governmental authority or any subdivision, agency, commission or authority
thereof or any quasi-governmental or private body, whether domestic or foreign,
having jurisdiction over the assessment, determination, collection or imposition
of any Tax (including the IRS).
Section 1.30 Treasury Regulation. "Treasury Regulation" means
the final and temporary (but not proposed) income tax regulations promulgated
under the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
ARTICLE II
PREPARATION AND FILING OF TAX RETURNS; PAYMENT OF TAX
Section 2.1 Tax Returns of Ivex.
(a) General. Except as provided herein, Ivex shall have
sole and exclusive responsibility for the preparation and filing, on a timely
basis of all U.S. Federal income Tax Returns, all combined state income Tax
Returns and all foreign Tax Returns of each member of the Ivex Consolidated
Group for any taxable period that ends on or before
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the Distribution Date (the "Ivex Consolidated Returns") as are required to be
filed. Ivex shall have the right to: determine the manner in which all such
returns shall be filed; make any elections in connection with any such returns;
contest, compromise and settle any adjustments of deficiency proposed, asserted
or assessed in connection with any such returns; file, pursue, compromise or
settle any claim for refund; and determine whether any refunds to which the Ivex
Consolidated Group is entitled shall be paid by way of a refund or credit.
(b) Ivex shall allow Packaging Dynamics an opportunity to
review and comment upon such Ivex Consolidated Returns to the extent that they
relate to the Tax Liability of Packaging Dynamics.
(c) To the extent an election, return position, or
amendment to a Tax Return filed by Ivex or a member of the Ivex Consolidated
Group relates to an item of income, gain, loss or deduction of Packaging
Dynamics accruing in a Post-Distribution Taxable Period, Packaging Dynamics and
Ivex shall cooperate with each other reasonably and in good faith to determine a
mutually acceptable election, return position, or amendment to such Tax Return.
Notwithstanding the foregoing, if such election, return position, or amendment
to such Tax Return solely affects Packaging Dynamics, such election, return
position, or amendment to such Tax Return shall be determined by Packaging
Dynamics in its sole discretion, reasonably and in good faith.
(d) Packaging Dynamics shall prepare and file all Tax
Returns that include solely Packaging Dynamics for all Straddle Periods. Ivex
and Packaging Dynamics shall execute such consents, elections and other
documents as may be required to provide for the proper filing of each Tax Return
relating to a Straddle Period.
Section 2.2 Tax Liability. Ivex shall be liable for all Taxes
due in respect of all Ivex Consolidated Returns and all Taxes imposed on or with
respect to Ivex or any of its Subsidiaries (including, without limitation,
Packaging Dynamics) for all Pre-Distribution Taxable Periods.
Section 2.3 Packaging Dynamics Separate Returns and Tax
Liability. Packaging Dynamics shall be liable for all Taxes of Packaging
Dynamics due in respect of all Post-Distribution Taxable Periods.
ARTICLE III
INDEMNIFICATION FOR TAXES
Section 3.1 Indemnification by Ivex. Except as otherwise
provided in this Article III, Ivex shall indemnify and hold Packaging Dynamics
and its successors and assigns harmless from and against (i) the Ivex
Consolidated Tax Liability, including any Taxes that are imposed on Ivex, any
member of the Ivex Consolidated Group or Packaging Dynamics as a result (in
whole or in part) of the Distribution, (ii) any liability for Taxes as a result
of Treasury Regulation Section 1.1502-6 or any analogous or similar provision
under state or local law or regulation, of any Person which is or has ever been
a member of the Ivex Consolidated Group, (iii) all Tax Liabilities that Ivex is
required to pay under Article II
5
hereof, and (iv) any costs and expenses related to any of the foregoing
(including, without limitation, reasonable legal, accounting, appraisal,
consulting or similar fees and expenses), provided, however, that this Section
3.1 shall not apply to any portion of the Tax Liability of Packaging Dynamics
described in Section 3.2 hereof.
Section 3.2 Indemnification by Packaging Dynamics. In the
Post-Distribution Taxable Period, Packaging Dynamics shall indemnify and hold
each member of the Ivex Consolidated Group (other than Packaging Dynamics)
harmless from and against (i) all Tax Liabilities that Packaging Dynamics is
required to pay under Article II hereof, and (ii) any costs and expenses related
to any of the foregoing (including, without limitation, reasonable legal,
accounting, appraisal, consulting or similar fees and expenses).
ARTICLE IV
TAX CONTESTS
Section 4.1 Notification. Packaging Dynamics shall promptly
upon receipt of notice thereof notify Ivex in writing of any communication with
respect to any pending or threatened Proceeding in connection with a Tax
Liability (or an issue related thereto) for which Ivex may be responsible
pursuant to this Agreement. Packaging Dynamics shall include with such
notification (and thereafter provide to Ivex) a true, correct and complete copy
of any written communication, and an accurate and complete written summary of
any oral communication, received by Packaging Dynamics with respect to any such
Proceeding. The failure of Packaging Dynamics to timely forward such
notification or further communication in accordance with the immediately
preceding sentence shall not relieve Ivex of its obligation to pay such Tax
Liability or indemnify Packaging Dynamics therefor, except and to the extent
that the failure to timely forward such notification or further communication
actually prejudices the ability of Ivex to contest such Tax Liability or
increases the amount of such Tax Liability. Similarly, Ivex shall promptly upon
receipt of notice thereof notify Packaging Dynamics in writing of any
communication with respect to any pending or threatened Proceeding in connection
with a Tax Liability (or an issue related thereto) for which Packaging Dynamics
may be responsible pursuant to this Agreement. Ivex shall include with such
notification (and thereafter provide to Packaging Dynamics) a true, correct and
complete copy of any written communication, and an accurate and complete written
summary of any oral communication, received by Ivex with respect to any such
Proceedings. The failure of Ivex to timely forward such notification or further
communication in accordance with the immediately preceding sentence shall not
relieve Packaging Dynamics of its obligation to pay such Tax Liability or
indemnify Ivex therefor, except and to the extent that the failure to timely
forward such notification or further communication actually prejudices the
ability of Packaging Dynamics to contest such Tax Liability or increases the
amount of such Tax Liability.
Section 4.2 Proceedings Involving Ivex. Except as limited in
Section 4.2(a), (b), (c), and (d), Ivex (or such member of the Ivex Consolidated
Group as Ivex shall designate) shall be entitled to control, settle, contest and
designate counsel with respect to any Proceeding with respect to a Tax Return
filed by Ivex or a member of the Ivex
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Consolidated Group or which Proceeding relates to items for which Ivex is
responsible hereunder, and Ivex shall have the right to resolve any such
Proceeding in its sole discretion.
(a) Ivex shall allow Packaging Dynamics and its counsel
to participate at its own expense in any Proceeding relating to a Tax Return
filed for a Ivex Consolidated Return Period, solely to the extent that such
Proceeding relates to Tax for which Packaging Dynamics would be liable under
Section 2.3 hereof. Packaging Dynamics shall have the sole authority to
determine whether any such Proceeding relates to Tax for which Packaging
Dynamics would be liable under Section 2.3 hereof, which authority shall be
exercised by Packaging Dynamics reasonably and in good faith;
(b) Subject to Section 4.2(a), to the extent an election,
return position, or amendment to a Tax Return filed by Ivex or a member of the
Ivex Consolidated Group relates to an item of income, gain, loss or deduction of
Packaging Dynamics accruing in a Post-Distribution Taxable Period, Packaging
Dynamics and Ivex shall cooperate with each other reasonably and in good faith
to determine a mutually acceptable election, return position, or amendment to
such Tax Return. Notwithstanding the foregoing, if such election, return
position, or amendment to such Tax Return solely affects Packaging Dynamics,
such election, return position, or amendment to such Tax Return shall be
determined by Packaging Dynamics in its sole discretion reasonably and in good
faith;
(c) Packaging Dynamics shall be entitled to control,
settle, contest and designate counsel with respect to any Proceeding with
respect to a Tax Return that includes solely Packaging Dynamics and relates
solely to items for which Packaging Dynamics is responsible hereunder, and
Packaging Dynamics shall have the right to resolve any such Proceedings in its
sole discretion.
(d) Packaging Dynamics shall allow Ivex and its counsel
to participate at its own expense in any Proceeding relating to a Tax Return
filed by Packaging Dynamics, to the extent that such Proceeding relates to Tax
for which Ivex would be liable under this Agreement. Ivex shall have the sole
authority to determine whether any such Proceeding relates to Tax for which Ivex
would be liable under this Agreement, which authority shall be exercised by Ivex
reasonably and in good faith.
ARTICLE V
REFUNDS AND TAX SHARING AGREEMENTS
Section 5.1 Refunds. Except as set forth in this Section 5.1,
Ivex shall be entitled to all Refunds (and any interest thereon received from
the applicable Taxing Authority) in respect of Taxes for all Ivex Consolidated
Returns or Taxes which relate to items for which Ivex is responsible hereunder.
Packaging Dynamics shall be entitled to all Refunds (and any interest thereon
received from the applicable Taxing Authority) in respect of (i) Taxes paid by
Packaging Dynamics for all Post-Distribution Taxable Periods and (ii) any Tax
Returns filed by Packaging Dynamics pursuant to this Agreement. A party
receiving a Refund to which another party is entitled pursuant to this Section
5.1 shall pay the amount to which such other party is entitled within ten (10)
days after such Refund is received or
7
used, as the case may be. Ivex shall be permitted to file, and Packaging
Dynamics shall fully cooperate with Ivex in connection with, any claim for
Refund in respect of a Tax for which any member of the Ivex Consolidated Group
is responsible hereunder.
Section 5.2 Tax Sharing Agreements. Any tax sharing agreement
(other than this Agreement) that includes Ivex or any member of the Ivex
Consolidated Group, on the one hand, and Packaging Dynamics on the other hand
shall be terminated as of the Distribution Date and will have no further effect
for any taxable year (whether the current year, a future year, or a past year).
Section 5.3 Compensation Deductions. Ivex (or the appropriate
member of the Ivex Consolidated Group) shall claim all Tax deductions arising by
reason of the exercise of options on, or receipt or vesting of restricted shares
of, Ivex stock.
ARTICLE VI
COOPERATION AND EXCHANGE OF INFORMATION
Section 6.1 Cooperation.
(a) Packaging Dynamics, on behalf of itself and each of
its affiliates, agrees to provide Ivex (or its designee), at Ivex's expense,
with such cooperation or information as Ivex (or its designee) reasonably shall
request in connection with the determination of any other calculations described
in this Agreement, the preparation or filing of any Tax Return or claim for
Refund, or the conduct of any Proceeding. Such cooperation and information shall
include, without limitation, (i) promptly forwarding copies of appropriate
notices and forms or other communications (including, without limitation,
information document requests, revenue agent reports and similar reports,
notices of proposed adjustments and notices of deficiency) received from or sent
to any Taxing Authority or any other administrative, judicial or governmental
authority, (ii) upon reasonable notice, providing copies of all relevant Tax
Returns, together with accompanying schedules and related workpapers, documents
relating to rulings or other determinations by taxing authorities, and such
other records concerning the ownership and tax basis of property, or other
relevant information that Packaging Dynamics or its affiliates may possess,
(iii) upon reasonable notice, providing of such additional information and
explanations of documents and information provided under this Agreement
(including statements, certificates and schedules delivered by either party) as
shall be reasonably requested by Ivex (or its designee), (iv) upon reasonable
notice, the providing of any document that may be necessary or reasonably
helpful in connection with the filing of a Tax Return, a claim for a Refund, or
in connection with any Proceeding, including such waivers, consents or powers of
attorney as may be necessary for Ivex to exercise its rights under this
Agreement, and (v) upon reasonable notice, using reasonable efforts to obtain
any documentation from a governmental authority or a third party that may be
necessary or reasonably helpful in connection with any of the foregoing. Upon
reasonable notice, Packaging Dynamics shall make its, or shall cause its
affiliates to make their, employees and facilities available on a mutually
convenient basis to provide explanation of any documents or information provided
hereunder. Any information obtained under this Section 6.1(a) shall be kept
confidential, except as otherwise
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reasonably may be necessary in connection with the filing of Tax Returns or
claims for Refund or in conducting any Proceeding.
(b) Ivex, on behalf of itself and each member of the Ivex
Consolidated Group (including Ivex), agrees to provide Packaging Dynamics (or
its designee) with such cooperation or information as Packaging Dynamics (or its
designee), at Packaging Dynamics' expense, reasonably shall request in
connection with the determination of any other calculations described in this
Agreement, the preparation or filing of any Tax Return or claim for Refund, or
the conduct of any Proceeding. Such cooperation and information shall include,
without limitation and upon reasonable notice, promptly forwarding copies of
appropriate notices and forms or other communications (including, without
limitation, information document requests, revenue agent's reports and similar
reports, notices of proposed adjustments and notices of deficiency) received
from or sent to any Taxing Authority or any other administrative, judicial or
governmental authority, (ii) upon reasonable notice, providing copies of all
relevant Tax Returns, together with accompanying schedules and related
workpapers, documents relating to rulings or other determinations by taxing
authorities, and such other records concerning the ownership and tax basis of
property, or other relevant information that Ivex or any member of the Ivex
Consolidated Group may possess, (iii) upon reasonable notice, the provision of
such additional information and explanations of documents and information
provided under this Agreement (including statements, certificates and schedules
delivered by either party) as shall be reasonably requested by Packaging
Dynamics (or its designee), (iv) upon reasonable notice, the providing of any
document that may be necessary or reasonably helpful in connection with the
filing of a Tax Return, a claim for a Refund, or in connection with any
Proceeding, including such waivers, consents or powers of attorney as may be
necessary for Packaging Dynamics to exercise its rights under this Agreement,
and (v) the use of Ivex's reasonable efforts to obtain any documentation from a
governmental authority or a third party that may be necessary or reasonably
helpful in connection with any of the foregoing. Upon reasonable notice, Ivex
shall make, or shall cause each member of the Ivex Consolidated Group to make,
its employees and facilities available on a mutually convenient basis to provide
explanation of any documents or information provided hereunder. Any information
obtained under this Section 6.1(b) shall be kept confidential, except as
otherwise reasonably may be necessary in connection with the filing of Tax
Returns or claims for Refund or in conducting any Proceeding. Notwithstanding
any other provision of this Agreement, neither Packaging Dynamics, nor any of
its affiliates nor any other Person shall have any right to receive or obtain
any information relating to income of Ivex or any of its affiliates other than
information relating to items of income, gain, loss, deduction, or the Tax
Liability of Packaging Dynamics.
Section 6.2 Retention of Records. Packaging Dynamics and Ivex
agree to retain all Tax Returns, related schedules and workpapers, and all
material records and other documents as required under Code Section 6001 and the
Treasury Regulations promulgated thereunder (and any similar provision of state,
local, or foreign Tax law) existing on the date hereof or created in respect of
(i) any taxable period that ends on or before or includes the Distribution Date
or (ii) any taxable period that may be subject to a claim hereunder, until the
later of (x) the expiration of the statute of limitations (including extensions)
for the taxable periods to which such Tax Returns and other documents relate and
(y) the Final
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Determination of any payments that may be required in respect of such taxable
periods under this Agreement. From and after the end of the period described in
the preceding sentence of this Section 6.2, if Packaging Dynamics wishes to
dispose of any such records and documents, then Packaging Dynamics shall provide
written notice thereof to Ivex and shall provide Ivex the opportunity to take
possession of any such records and documents within ninety (90) days after such
notice is delivered; provided, however, that if Ivex does not, within such
ninety (90) day period, confirm its intention to take possession of such records
and documents, Packaging Dynamics may destroy or otherwise dispose of such
records and documents. From and after the end of the period described in the
preceding sentence of this Section 6.2, if Ivex wishes to dispose of any such
records and documents, then Ivex shall provide written notice thereof to
Packaging Dynamics and shall provide Packaging Dynamics the opportunity to take
possession of any such records and documents within ninety (90) days after such
notice is delivered; provided, however, that if Packaging Dynamics does not,
within such ninety (90) day period, confirm its intention to take possession of
such records and documents, Ivex may destroy or otherwise dispose of such
records and documents.
ARTICLE VII
PAYMENTS
Section 7.1 Method of Payment. All payments required by this
Agreement shall be made by (a) wire transfer to the appropriate bank account as
may from time to time be designated by the parties for such purpose; provided
that, on the date of such wire transfer, notice of the transfer is given to the
recipient thereof in accordance with Section 8.4 hereof, or (b) any other method
agreed to by the parties. All payments due under this Agreement shall be deemed
to be paid when available funds are actually received by the payee.
Section 7.2 Interest. Any payment required by this Agreement
that is not made on or before the date required hereunder shall bear interest,
from and after such date through the date of payment, at the underpayment rate
as in effect at such time under Section 6621 of the Code.
Section 7.3 Characterization of Payments. For all tax
purposes, the parties hereto agree to treat, and to cause their respective
affiliates to treat, (i) any payment required by this Agreement as a
contribution by Ivex to Packaging Dynamics or distribution from Packaging
Dynamics to Ivex, as the case may be, occurring immediately prior to the
Distribution and (ii) any payment of interest or non-federal Taxes by or to a
Taxing Authority, as taxable to or deductible by, as the case may be, the party
entitled under this Agreement to receive such payment or required under this
Agreement to make such payment, in either case except as otherwise mandated by
applicable law. In the event it is determined as a result of a Final
Determination that any treatment described under clause (i) or (ii) hereof is
not permissible, the payment in question shall be adjusted to place the parties
in the same after-tax position they would have enjoyed absent such Final
Determination. Any payment required by this Agreement by Packaging Dynamics to
Ivex shall be treated as Packaging
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Dynamics' share of the Tax Liability of the Ivex Consolidated Returns, as
determined in accordance with this Agreement and the Treasury Regulations under
Section 1502.
Section 7.4 Time of Indemnification Payment. To the extent an
indemnification obligation arises, the Indemnifying Party shall, upon at least
ten (10) days' prior notice, make payment pursuant to such indemnification
obligation no later than five (5) days prior to the date the Indemnified Party
makes a payment of taxes, interest, or penalties with respect to such Tax
Liability, including a proposed adjustment of taxes or an assessment of tax
deficiency asserted or made by any Taxing Authority that is premised in whole or
part on such Tax Liability, or a payment made in settlement of an asserted tax
deficiency.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Entire Agreement. This Agreement, the Distribution
Agreement, the PD Letter Agreement and the Exhibits and Schedules referenced or
attached hereto and thereto, constitute the entire agreement between the parties
with respect to the subject matter hereof and shall supersede all prior written
and oral and all contemporaneous oral agreements and understandings with respect
to the subject matter hereof.
Section 8.2 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, without
regard to its rules regarding conflicts of laws.
Section 8.3 Notices. Any notice, demand, offer, request or
other communication required or permitted to be given by either party pursuant
to the terms of this Agreement shall be in accordance with Section 7.01 of the
Distribution Agreement.
Section 8.4 Amendment. This Agreement may be amended, modified
or supplemented only by a written agreement signed by both of the parties
hereto.
Section 8.5 Counterparts. This Agreement and the other
documents referred to herein, may be executed via facsimile or otherwise in
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
Section 8.6 Binding Effect; Assignment. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective legal representatives and successors, and nothing in this Agreement,
express or implied, is intended to confer upon any other Person any rights or
remedies of any nature whatsoever under or by reason of this Agreement. Except
as herein specifically provided to the contrary, neither party may assign this
Agreement or any rights or obligations hereunder, without the prior written
consent of the other party, and any such assignment shall be void; provided,
however, that either party (or its permitted successive assignees or transferees
hereunder) may assign or transfer this Agreement as a whole without consent to
an entity that succeeds to all or substantially all of the business or assets of
such party to which this Agreement relates. Notwithstanding the foregoing, Ivex
may assign any of its rights or obligations under this Agreement to any
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member of its consolidated group as determined under Section 1504 of the Code it
shall designate or to any purchaser of Ivex; provided, however, that no such
assignment shall relieve Ivex of any obligation to make a payment hereunder to
Packaging Dynamics to the extent such designee fails to make such payment.
Section 8.7 Severability. The parties hereto have negotiated
and prepared the terms of this Agreement in good faith with the intent that each
and every one of the terms, covenants and conditions herein be binding upon and
inure to the benefit of the respective parties. Accordingly, if any one or more
of the terms, provisions, promises, covenants or conditions of this Agreement or
the application thereof to any person or circumstance shall be adjudged to any
extent invalid, unenforceable, void or voidable for any reason whatsoever by a
court of competent jurisdiction, such provision shall be as narrowly construed
as possible, and each and all of the remaining terms, provisions, promises,
covenants and conditions of this Agreement or their application to other persons
or circumstances shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law. To the extent this Agreement
is in violation of applicable law, then the parties agree to negotiate in good
faith to amend the Agreement, to the extent possible consistent with its
purposes, to conform to law.
Section 8.8 Waiver of Breach. The waiver by either party
hereto of a breach or violation of any provision of this Agreement shall not
operate as, or be construed to constitute, a waiver of any subsequent breach of
the same or another provision hereof.
Section 8.9 Amendment and Execution. This Agreement and
amendments hereto shall be in writing and executed in multiple copies via
facsimile or otherwise on behalf of Ivex and Packaging Dynamics by their
respective duly authorized officers and representatives. Each multiple copy
shall be deemed an original, but all multiple copies together shall constitute
one and the same instrument.
Section 8.10 Authority. Each of the parties hereto represents
to the other that (i) it has the corporate or other requisite power and
authority to execute, deliver and perform this Agreement, (ii) the execution,
delivery and performance of this Agreement by it have been duly authorized by
all necessary corporate or other actions, (iii) it has duly and validly executed
and delivered this Agreement, and (iv) this Agreement is a legal, valid and
binding obligation, enforceable against it in accordance with its terms subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and general equity
principles.
Section 8.11 Descriptive Headings. The headings contained in
this Agreement and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. When a reference is made in this Agreement to an Article or a
Section, such reference shall be to an Article or Section of this Agreement
unless otherwise indicated.
Section 8.12 Gender and Number. Whenever the context of this
Agreement requires, the gender of all words herein shall include the masculine,
feminine and neuter, and the number of all words herein shall include the
singular and plural.
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Section 8.13 Additional Assurances. Except as may be
specifically provided herein to the contrary, the provisions of this Agreement
shall be self- operative and shall not require further agreement by the parties;
provided, however, at the request of either party, the other party shall execute
such additional instruments and take such additional acts as are reasonable, and
as the requesting party may reasonably deem necessary, to effectuate this
Agreement.
Section 8.14 Force Majeure. Neither party shall be liable or
deemed to be in default for any delay or failure in performance under this
Agreement or other interruption of service deemed to result, directly or
indirectly, from acts of God, civil or military authority, acts of public enemy,
war, accidents, explosions, earthquakes, floods, failure of transportation,
strikes or other work interruptions by either party's employees, or any other
similar cause beyond the reasonable control of either party unless such delay or
failure in performance is expressly addressed elsewhere in this Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf by its officers thereunto duly authorized
on the day and year first above written.
IVEX PACKAGING CORPORATION PACKAGING DYNAMICS CORPORATION
By: /s/ G. Xxxxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------ -------------------------------
Name: Name:
Title: Title:
[SIGNATURE PAGE TO TAX SHARING AGREEMENT]
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