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Exhibit 10.8
FORM OF
TAX AND INDEMNIFICATION AGREEMENT
BY AND BETWEEN
XXXXXXXXXXXXXXXXX.XXX, INC.
AND
AMERICAN GREETINGS CORPORATION
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS.............................................................................................1
1.1 "Affiliate"..............................................................................................1
1.2 "Affiliated Group".......................................................................................1
1.3 "AGC Subgroup"...........................................................................................1
1.4 "XX.xxx Subgroup"........................................................................................2
1.5 "Code"...................................................................................................2
1.6 "Composite Tax Return"...................................................................................2
1.7 "Consolidated Income Tax Return".........................................................................2
1.8 "Consolidated Return Year"...............................................................................2
1.9 "Distribution"...........................................................................................2
1.10 "Final Determination"....................................................................................2
1.11 "IRS"....................................................................................................2
1.12 "Parent's Group".........................................................................................3
1.13 "Period".................................................................................................3
1.14 "Recapitalization".......................................................................................3
1.15 "Regulations"............................................................................................3
1.16 "Short Period"...........................................................................................3
1.17 "State Income Taxes".....................................................................................3
1.18 "Subgroup Composite Tax Liability".......................................................................3
1.19 "Subgroup Federal Income Tax Liability"..................................................................3
1.20 "Tax" and "Taxes"........................................................................................3
1.21 "Tax Returns"............................................................................................4
ARTICLE II RETURNS AND CONTROVERSIES..............................................................................4
2.1 Consolidated Income Tax Returns..........................................................................4
2.2 Composite Tax Returns....................................................................................5
2.3 All other Taxes..........................................................................................5
ARTICLE III ALLOCATION OF TAX LIABILITIES; INDEMNIFICATIONS.......................................................6
3.1 Initial Allocations......................................................................................6
3.2 Subsequent Adjustments; Indemnifications.................................................................7
3.3 Time of Payment..........................................................................................8
ARTICLE IV COOPERATION BY THE PARTIES.............................................................................8
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4.1 Record Retention.........................................................................................8
4.2 Return Preparation and Controversies.....................................................................8
4.3 Carrybacks...............................................................................................9
4.4 Expenses.................................................................................................9
ARTICLE V MISCELLANEOUS..........................................................................................10
5.1 Sole Remedy.............................................................................................10
5.2 Liability and Indemnity.................................................................................10
5.3 Effectiveness of this Agreement; Survival of Obligations................................................10
5.4 Complete Agreement......................................................................................10
5.5 Governing Law...........................................................................................10
5.6 Notices.................................................................................................10
5.7 Amendments..............................................................................................11
5.8 Successors and Assigns..................................................................................11
5.9 No Third-Party Beneficiaries............................................................................11
5.10 Titles and Headings.....................................................................................11
5.11 Execution in Counterparts...............................................................................11
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TAX AND INDEMNIFICATION AGREEMENT
THIS TAX AND INDEMNIFICATION AGREEMENT ("Agreement") is made this _____
day of ______________, 1999, by and between xxxxxxxxxxxxxxxxx.xxx inc., a
Delaware corporation ("XX.xxx") on its own behalf and on behalf of its
wholly-owned subsidiaries (the "Subsidiaries"), and American Greetings
Corporation, an Ohio corporation ("AGC").
RECITALS
WHEREAS, XX.xxx is a wholly-owned subsidiary of AGC;
WHEREAS, XX.xxx intends to sell a minority interest in its Class A
Common Stock, par value $0.001 per share ("Common Stock"), to the public
("Public Offering");
WHEREAS, upon the closing of the Public Offering ("Closing Date"), AGC
will own less than 80% of the outstanding Common Stock of XX.xxx;
WHEREAS, for periods ending on or before the Closing Date, XX.xxx and
its Subsidiaries have been or will be included in certain tax returns filed or
to be filed on behalf of Parent's Group (as defined below);
WHEREAS, the parties hereto desire to allocate responsibility for the
payment of federal, state, local, and foreign taxes attributable to the
operations of XX.xxx and its subsidiaries during the taxable period in which
such Public Offering occurs and for taxable periods prior and subsequent to such
period, and provide for the consequences of post-Closing Date adjustments of
such tax liabilities and related matters;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
As used herein the following terms when capitalized shall have the
following meanings:
1.1 "AFFILIATE" means, with respect to a corporation, any other
corporation that, directly or indirectly, controls, is controlled by, or is
under common control with such first corporation.
1.2 "AFFILIATED GROUP" means an "affiliated group" as defined in
section 1504(a) of the Code.
1.3 "AGC SUBGROUP" means AGC and each other corporation which is a
member of Parent's Group and is not an XX.xxx Subgroup Member; and "AGC Subgroup
Member" means any corporation which is a member of the AGC Subgroup.
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1.4 "XX.XXX SUBGROUP" means XX.xxx and all other corporations that, as
of any relevant date, are members of an Affiliated Group of which XX.xxx is the
common parent, or would be members of such a group if XX.xxx were not a
subsidiary of AGC; and "XX.XXX SUBGROUP MEMBER" means any corporation which is a
member of such (actual or hypothetical) Affiliated Group.
1.5 "CODE" means the Internal Revenue Code of 1986, as amended and as
in effect from time to time, and any predecessor or successor thereto. A
reference to any section of the Code means such section as in effect from time
to time and any comparable provisions of any predecessor or successor law.
1.6 "COMPOSITE TAX RETURN" means any State Income Tax or other Tax
Return which has been or will be filed by any AGC Subgroup Member or XX.xxx
Subgroup Member which computes the Taxes (the "COMBINED TAXES") payable to a
state, local or foreign taxing jurisdiction in respect of the income, operations
or assets of two or more corporations that include at least one Subgroup Member
from each of the AGC Subgroup and the XX.xxx Subgroup based on so-called
"combined or consolidated reporting" or apportionment of business income under
the so-called "unitary business" concept.
1.7 "CONSOLIDATED INCOME TAX RETURN" means any Tax Return for or
relating to federal Income Taxes which is or will be required to be filed by AGC
on behalf of Parent's Group; and "CONSOLIDATED INCOME TAXES" means the federal
Income Taxes shown or required to be shown on any such Tax Return.
1.8 "CONSOLIDATED RETURN YEAR" means any taxable year (or portion
thereof) with respect to which any XX.xxx Subgroup Member is included in a
Consolidated Income Tax Return or Composite Tax Return.
1.9 "DISTRIBUTION" means a distribution of the stock of XX.xxx to the
shareholders of AGC and any related distributions or transfers within Parent's
Group.
1.10 "FINAL DETERMINATION" means, in the context of federal income
taxes, with respect to any issue or item for any Period (i) a final,
unappealable decision by a court of competent jurisdiction; (ii) the expiration
of the time for assessment of Taxes or filing a claim for refund, or if a refund
claim has been timely filed, the expiration of the time for instituting suit in
respect of such refund claim, if no further adjustment to the items of income,
gain, deduction, loss, or credit for such Period may thereafter be made; (iii)
the execution by or on behalf of the taxpayer and the IRS of a closing agreement
under section 7121 of the Code; (iv) the acceptance by the IRS or its counsel of
a tender pursuant to an offer in compromise pursuant to section 7122 of the
Code; (v) the execution of a Form 870A; or (vi) any other final and irrevocable
determination of the tax liability of a party to this Agreement (or Affiliate of
a party) for any Period. In the context of other Taxes, "FINAL DETERMINATION"
means, with respect to any issue or item for any Period, any final, unappealable
and irrevocable determination of the tax liability of a party to this Agreement
(or an Affiliate of a party) for any Period.
1.11 "IRS" means the United States Internal Revenue Service or any
successor thereto.
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1.12 "PARENT'S GROUP" means any Affiliated Group including AGC or any
predecessor or successor thereof.
1.13 "PERIOD" means any taxable year or any other period which is
treated as a taxable year (including the Short Period) for purposes of the Code,
when used in the context of federal income taxes. When used in the context of
any other Taxes, "PERIOD" means any taxable year or other period with respect to
which any such Tax may be imposed under any applicable statute, rule or
regulation.
1.14 "RECAPITALIZATION" means any modifications to the classes, terms
or amounts of the outstanding capital stock of XX.xxx in connection with the
Public Offering.
1.15 "REGULATIONS" means the Treasury Regulations in effect from time
to time under the Code.
1.16 "SHORT PERIOD" means the Period beginning on [January 1, 1999] and
ending on or immediately before the Closing Date.
1.17 "STATE INCOME TAXES" means all taxes measured on or by net income
imposed by any State of the United States of America or political subdivision
thereof, and shall include taxes denominated as franchise taxes.
1.18 "SUBGROUP COMPOSITE TAX LIABILITY" means, with respect to any
Composite Tax Return and Subgroup, the Combined Tax liability for the Period of
such Tax Return properly allocable to such Subgroup in accordance with
principles analogous to those applicable in determining Subgroup Federal Income
Tax Liability, provided that a Tax payable with respect to such Composite
Return, but which would not be payable if the income, operations or assets of a
corporation were not taken into account, shall be treated as allocable to such
corporation and the Subgroup of which it is a member.
1.19 "SUBGROUP FEDERAL INCOME TAX LIABILITY" means, with respect to any
Consolidated Income Tax Return and Subgroup, the federal Income Tax liability of
such Subgroup for the Consolidated Return Year computed as if the Subgroup had
filed a separate consolidated federal income tax return for such year, subject
to adjustments in accordance with section 1.1552-1(a)(2)(ii)(a) through (h) of
the Regulations or any similar or successor provisions (treating all members as
part of a single consolidated group for purposes of such adjustments only).
1.20 "TAX" and "TAXES" means all income taxes (including federal income
taxes, State Income Taxes and foreign income taxes imposed under Subtitle A of
the Code or similar laws of any government or other taxing authority, referred
to herein as "INCOME TAXES"); payroll and employee withholding taxes imposed
under Chapters 21 through 24 of the Code, or any similar or comparable payroll
and employee withholding taxes (including disability withholding taxes) imposed
by the laws of any taxing authority; sales and use taxes; excise taxes; real and
personal property taxes; and any other governmental imposition generally
referred to as or in the nature of
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a tax. Any reference in this Agreement to a Tax (or refund thereof) shall also
be deemed to refer to any interest, additions to Tax, or penalties that may be
payable in respect thereof.
1.21 "TAX RETURNS" means all reports, estimates, information statements
and returns relating to, or required to be filed in connection with, any Taxes
pursuant to the statutes, rules and regulations of any federal, state, local, or
foreign government taxing authority.
ARTICLE II
RETURNS AND CONTROVERSIES
2.1 CONSOLIDATED INCOME TAX RETURNS.
(a) RETURNS AND PAYMENT. AGC shall have exclusive authority to prepare
and file Consolidated Income Tax Returns. Subject to the terms of this
Agreement, AGC shall be responsible for the timely filing of, and shall be
liable, and shall indemnify each XX.xxx Subgroup Member, for any penalties or
other damages attributable to any failure of AGC to make timely filings of
Consolidated Income Tax Returns or full and timely payment of all amounts shown
to be due thereon; provided, however, that XX.xxx shall be responsible for
making timely payment to AGC of all amounts due to AGC by XX.xxx pursuant
hereto, and providing AGC with all information reasonably required by AGC with
respect to the income, operations and assets of each XX.xxx Subgroup Member in
order for AGC to prepare and file such Consolidated Income Tax Returns and to
make payments of the Tax shown to be due thereon, including estimated payments,
on a timely basis. In calculating amounts to be shown as due on the Consolidated
Federal Income Tax Return with respect to a Consolidated Return Year during
which any XX.xxx Subgroup Member ceases to be a member of Parent's Group, all
items of each XX.xxx Subgroup Member (including items triggered by reason of
such member or members ceasing to be a member of Parent's Group) shall be taken
into account in accordance with Regulations ss. 1.1502-76(b), and no election
shall be made under Regulations ss. 1.1502-76(b)(2)(ii) or (iii).
(b) CONTROVERSIES. AGC shall have exclusive authority to represent each
XX.xxx Subgroup Member before the IRS or any other governmental authority or any
court regarding Consolidated Income Taxes, including, but not limited to (i) the
exclusive control of any response to any examination by the IRS or any other
taxing authority; and (ii) the exclusive control over any contest of any issue
through a Final Determination, including, but not limited to (A) whether and in
what forum to conduct such contest, and (B) whether and on what basis to settle
such contest.
AGC shall promptly notify XX.xxx of any correspondence and Tax
controversies relating to items of any XX.xxx Subgroup Member and provide XX.xxx
with copies of all such correspondence. Subject to AGC's exclusive authority as
provided herein, XX.xxx shall have the right to consult with AGC with respect to
the handling of any such matters, and shall exercise such right, if at all, on a
timely basis. AGC shall provide XX.xxx with notice of, and permit XX.xxx to
attend any hearing or other proceedings to the extent they relate to any such
controversies involving items of any XX.xxx Subgroup Member(s).
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2.2 COMPOSITE TAX RETURNS.
(a) TAX RETURNS AND PAYMENTS. AGC or an AGC Subgroup Member designated
by AGC shall have exclusive authority to prepare and file each Composite Return.
Subject to the terms of this Agreement, AGC shall be responsible for the timely
filing of, and shall be liable, and shall indemnify each XX.xxx Subgroup Member,
for any penalties or other damages attributable to the failure of AGC or its
designee to make timely filings of Composite Tax Returns or full and timely
payment of all amounts shown to be due thereon; provided, however, that XX.xxx
shall be responsible for making timely payment to AGC or its designee of all
amounts due to AGC by XX.xxx pursuant hereto, and providing AGC or its designee
with all information reasonably required by AGC or its designee with respect to
the income, operations and assets of any XX.xxx Subgroup Member in order for AGC
or its designees to file such Composite Tax Returns, and to make payments of the
Tax shown to be due thereon, including estimated tax payments, on a timely
basis.
(b) CONTROVERSIES. AGC or its designee shall have exclusive authority
to represent each XX.xxx Subgroup Member included in a Composite Return before
any governmental agency or any court regarding Combined Taxes, including but not
limited to, (i) the exclusive control of any response to any examination by any
taxing authority, and (ii) the exclusive control over any contest of any issue
therein through a Final Determination, including, but not limited to (A) whether
and in what forum to conduct such contest, and (B) whether and on what basis to
settle such contest.
AGC or its designee shall promptly notify XX.xxx of any correspondence
and Combined Tax controversies relating to items of any XX.xxx Subgroup Member,
and provide XX.xxx with copies of all such correspondence. Subject to AGC's or
its designee's exclusive authority as provided herein, XX.xxx shall have the
right to consult with AGC or its designee with respect to the handling of any
such matters, and shall exercise such right, if at all, on a timely basis. AGC
or its designee shall provide XX.xxx with notice of, and permit XX.xxx to attend
any hearing or other proceedings to the extent they relate to any such
controversies involving items of any XX.xxx Subgroup Member(s).
2.3 ALL OTHER TAXES.
(a) TAX RETURNS AND PAYMENTS. Except as otherwise provided herein or as
the parties may otherwise agree, AGC or its designee shall have exclusive
authority and responsibility with regard to all Taxes of all AGC Subgroup
Members, and XX.xxx or its designee shall have exclusive authority and
responsibility with regard to all Taxes of all XX.xxx Subgroup Members. Each of
AGC and XX.xxx (or their designees) shall be responsible for the correct and
timely filing of, and shall be liable for the full and timely payment of all
amounts shown to be due on, all federal income tax and information returns and
all other Tax Returns for Taxes of their respective Subgroups or the Members
thereof; [provided, however, that AGC shall be liable, and shall indemnify
XX.xxx, for the full and timely payment of all amounts shown to be due on all
Tax Returns which are or will be due on or before the Closing Date, for Taxes of
any XX.xxx Subgroup Members for Periods ending on or before the Closing Date].
AGC's and XX.xxx's authority hereunder shall include, but not be limited to, the
determination of the
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manner in which any items of income, gain, deduction, loss or credit arising out
of operations of their respective Subgroups and the members thereof shall be
reported or disclosed in such returns. AGC and XX.xxx shall be entitled to make
any elections under the Code or the Regulations in respect of the operations of
their respective Subgroups for all such Tax Returns.
(b) CONTROVERSIES. Except as otherwise provided herein or as the
parties may otherwise agree, each of AGC and XX.xxx shall have exclusive
authority to represent itself and the members of its respective Subgroup before
the IRS or any other taxing authority or any court regarding the Tax
consequences of the income, operations and assets of it and/or the members of
its Subgroup with respect to all Tax Returns subject to section 2.3(a) above,
and Taxes required to be shown thereon.
ARTICLE III
ALLOCATION OF TAX LIABILITIES; INDEMNIFICATIONS
3.1 INITIAL ALLOCATIONS.
(a) CONSOLIDATED INCOME TAXES. With respect to each Consolidated Income
Tax Return for any Consolidated Return Year, XX.xxx shall pay to AGC the amount,
if any, of the Subgroup Federal Income Tax Liability of the XX.xxx Subgroup; or
if such Subgroup Federal Income Tax Liability is not greater than zero, AGC
shall pay to XX.xxx the excess, if any, of (i) the AGC Subgroup's Subgroup
Federal Income Tax Liability over (ii) the actual Consolidated Income Tax
payable with respect to Parent's Group for the Consolidated Return Year. [For
purposes of determining payment obligations under this Section 3.1, except as
otherwise provided herein, the Subgroup Federal Income Tax Liability of the
XX.xxx Subgroup shall be [decreased] and the Subgroup Federal Income Tax
Liability of the AGC Subgroup shall be [increased] by any amount otherwise
allocable to [XX.xxx] hereunder, which is attributable to the Public Offering or
Recapitalization.]
(b) ESTIMATED TAX. AGC will have the right to assess XX.xxx for an
appropriate portion of any estimated payments of Consolidated Income Taxes,
determined in accordance with the principles of section 3.1(a), at the time such
payments are required to be made. Any such payments will be credited against the
amounts otherwise payable by XX.xxx under section 3.1(a).
(c) EARNINGS AND PROFITS ALLOCATION. The parties understand that the
method of allocation of Consolidated Income Tax Liabilities used for the
determination of earnings and profits for federal Income Tax purposes under
applicable laws may differ from the methods prescribed herein for sharing the
economic burdens of such Taxes. To the extent permitted by applicable laws and
not otherwise inconsistent with the best interests of AGC, AGC agrees to make
any elections or take any other action which would cause such prescribed method
of allocation to resemble as closely as practical the method of sharing the
economic burdens of such Tax provided in this Agreement.
(d) ALTERNATIVE MINIMUM TAX. If Parent's Group has a federal
alternative minimum Tax liability for any Consolidated Return Year, payments
shall be made between AGC and XX.xxx to the extent necessary to allocate the
burden of such Tax in accordance with principles analogous to those in section
3.1(a). For purposes of this subsection, any liability under Code
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section 59A or any other federal Tax imposed by reference to alternative minimum
Tax principles will be treated as a federal alternative minimum Tax liability.
(e) COMBINED TAXES. With respect to each Composite Tax Return filed
pursuant to section 2.2 above, AGC or its designee shall compute the Subgroup
Composite Tax liability of the XX.xxx Subgroup and, if necessary, the AGC
Subgroup, in accordance with principles analogous to those set forth in section
3.1 above, and XX.xxx shall pay to AGC or AGC shall pay to XX.xxx, as
appropriate, the amount so determined.
3.2 SUBSEQUENT ADJUSTMENTS; INDEMNIFICATIONS.
(a) CONSOLIDATED INCOME TAXES. AGC shall be responsible and liable, and
shall indemnify each XX.xxx Subgroup Member, for any and all increases in
Consolidated Income Taxes, and shall be entitled to any refund or credit
attributable to any decreases in such Taxes, that are determined pursuant to a
Final Determination and are allocable to any AGC Subgroup Member. XX.xxx shall
be responsible and liable, and shall indemnify each AGC Subgroup Member, for any
and all increases in Consolidated Income Taxes, and shall be entitled to any
refund or credit attributable to any decreases in such Taxes, that are
determined pursuant to a Final Determination and are allocable to any XX.xxx
Subgroup Member. For purposes of determining the amount of any Consolidated
Income Tax increases or decreases that are allocable to any Subgroup Member, the
amounts computed under section 3.1(a) above shall be recomputed to take into
account all adjustments made in accordance with the Final Determination.
(b) COMBINED TAXES. AGC shall be responsible and liable, and shall
indemnify each XX.xxx Subgroup Member, for any and all increases in Combined
Taxes, and shall be entitled to any refund or credit attributable to any
decreases in such Taxes, that are determined pursuant to a Final Determination
and are allocable to any AGC Subgroup Member. XX.xxx shall be responsible and
liable, and shall indemnify each AGC Subgroup Member, for any and all increases
in Combined Taxes, and shall be entitled to any refund or credit attributable to
any decreases in such Taxes, that are determined pursuant to a Final
Determination and are allocable to any XX.xxx Subgroup Member. For purposes of
determining the amount of any Combined Tax increases or decreases that are
allocable to any Subgroup Member, the amounts computed under section 3.2(a)
above shall be recomputed to take into account all adjustments made in
accordance with the Final Determination.
(c) ALL OTHER TAXES. AGC shall be responsible and liable for, and shall
indemnify and hold each XX.xxx Subgroup Member harmless from any increases in,
and shall be entitled to any refund resulting from any decreases in, any and all
Taxes of any AGC Subgroup Member described in section 2.3 above. XX.xxx shall be
responsible and liable for, and shall indemnify and hold each AGC Subgroup
Member harmless from any increases in, and shall be entitled to any refund
resulting from any decreases in any and all Taxes of any XX.xxx Subgroup Member
described in section 2.3 above.
(d) DISTRIBUTION. Notwithstanding anything to the contrary in the
foregoing subsections (a), (b), and (c), AGC shall be responsible and liable
for, and shall indemnify and hold each XX.xxx Subgroup Member harmless from any
Tax for which such Member would be liable hereunder and which arises solely as a
result of a Distribution, provided that no action of any XX.xxx Subgroup Member
or shareholder(s) thereof taken after such Distribution caused
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the Distribution to result in such Tax; and XX.xxx shall be responsible and
liable for, and shall indemnify and hold each AGC Subgroup Member harmless from
any Tax for which such Member would be liable hereunder and which arises solely
as a result of any action taken by an XX.xxx Subgroup Member or shareholder(s)
thereof after a Distribution, which caused the Distribution to result in such
Tax.
3.3 TIME OF PAYMENT. The amounts owed by either XX.xxx or AGC pursuant
to section 3.1 or (other than with respect to a refund) section 4.3 of this
Agreement shall be paid not less than 5 days before the applicable Tax Return is
due. Amounts due from one party to the other under section 3.2 or (with respect
to any refund) section 4.3 of this Agreement shall be paid by such party to the
other within 30 days after receiving written notification of such amount from
one party to the other pursuant to a Final Determination, or receiving a refund
of such amount, as the case may be.
ARTICLE IV
COOPERATION BY THE PARTIES
4.1 RECORD RETENTION. AGC and XX.xxx agree that all records, including
but not limited to returns, supporting schedules, workpapers, correspondence and
other documents within the possession of either, and relating to Tax liabilities
or refunds of either, shall be retained by each for as long as they may be
material to the determination of such liabilities or refunds and shall be made
reasonably available to either party upon request.
4.2 RETURN PREPARATION AND CONTROVERSIES.
(a) IN GENERAL. Each party hereto agrees that it will cooperate with
the other and their respective representatives, in a prompt and timely manner,
in connection with (i) the preparation and filing of, and (ii) any
administrative or judicial proceeding involving, any Tax Return filed or
required to be filed by AGC, XX.xxx, or members of their respective Subgroups.
Such cooperation shall include but not be limited to (i) the execution and
delivery to AGC by XX.xxx and/or members of its Subgroup of any power of
attorney required to allow AGC and its counsel to represent any XX.xxx Subgroup
Members in any controversy which AGC has the right to control pursuant to
Section 2.1(b) or Section 2.2(b), and (ii) making available to the other party,
during normal business hours, all books, records (including but not limited to
working papers and schedules), information, officers and employees (without
substantial interruption of employment), reasonably requested and necessary or
useful in connection with any Tax filing, inquiry, audit, investigation,
dispute, litigation or other matter. Notwithstanding the foregoing, neither
party shall be required to furnish to the other Tax Returns or drafts thereof
(except as otherwise expressly provided herein), except that each party shall
furnish to the other the applicable portions of such returns reporting the
operations of XX.xxx Subgroup Members and the relevant portions of all reports
relating to the examination by the IRS or any other governmental agency of such
Tax Returns.
(b) DRAFT CONSOLIDATED INCOME TAX RETURN. Provided that XX.xxx shall
have furnished to AGC the information required to be provided herein, AGC shall
prepare and, not less than 5 days before filing, furnish to XX.xxx drafts of
those portions of Consolidated Income
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Tax Returns and Composite Returns which report the operations of any XX.xxx
Subgroup Members. Such drafts shall be prepared without regard to the items of
income, gain, deduction, loss or credit of any AGC Subgroup Member. Except as
AGC may otherwise determine after consulting with XX.xxx, all items of income,
gain, deduction, loss and credit of each XX.xxx Subgroup Member included in such
draft Tax Returns shall be reported on a basis consistent with any reporting of
such items (or substantially similar items) by the XX.xxx Subgroup Members in
prior Periods unless applicable law or a change in factual circumstances
requires otherwise. AGC will consult with XX.xxx in good faith prior to the
filing of Consolidated Income Tax Returns or Composite Returns for any
Consolidated Return Years with respect to any differences between such Tax
Returns and the information provided by XX.xxx as provided hereunder.
(c) CONSISTENCY. In filing any Consolidated Income Tax Return or
Composite Tax Return for any Consolidated Return Year, AGC shall make all
computations of taxable amounts and Taxes on a basis consistent with the
computations of such amounts in prior Tax Returns for the respective Taxing
jurisdictions except to the extent otherwise required by the laws, rules, or
regulations of the applicable Taxing authority or as a result of a change in
circumstances. In determining how to treat any matter for which there is no
precedent in prior Tax Returns or controlling legal authority, AGC shall in good
faith take into account the reasonable interests of the XX.xxx Subgroup Members
after due consultation with XX.xxx.
4.3 CARRYBACKS. Deductions, losses, or credits of any XX.xxx Subgroup
Member arising in a period in which such XX.xxx Subgroup Member is not included
in a Consolidated Income Tax Return or a Composite Tax Return may, under
applicable law, be available for carryback to a Consolidated Return Year in
which such XX.xxx Subgroup Member was so included. To the extent applicable law
allows the carryback to be waived, XX.xxx shall have the exclusive authority to
determine whether or not to waive such carryback. To the extent the carryback is
not waivable or is not waived, AGC shall include such carryback in an amended
Consolidated Income Tax Return or Composite Tax Return, as the case may be, and
shall pay to XX.xxx an amount equal to the reduction in Taxes of any AGC
Subgroup Member attributable to such carryback. To the extent such carryback
causes any AGC Subgroup Member to incur any additional tax (whether with respect
to the Period to which the carryback is carried or otherwise), XX.xxx shall pay
to AGC an amount equal to such additional Tax.
4.4 EXPENSES. Unless otherwise expressly provided in this Agreement,
each of the parties shall bear any and all expenses that arise from the
performance or exercise of their respective obligations and rights under this
Agreement. In the case of expenses incurred by AGC or its designee in connection
with the preparation or audit of Consolidated Income Tax Returns or Composite
Tax Returns for any Consolidated Return Years, or contests or controversies
related to such returns, AGC shall make an appropriate allocation of such
expenses between AGC and XX.xxx, and XX.xxx shall reimburse AGC for its
allocable share of such costs.
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ARTICLE V
MISCELLANEOUS
5.1 SOLE REMEDY. Except as explicitly provided in this Agreement, no
XX.xxx Subgroup Member or AGC Subgroup member shall have any claim against any
member of the other Subgroup for payment of Taxes or for compensation for use of
such Subgroup Member's Tax attributes, including losses.
5.2 LIABILITY AND INDEMNITY. AGC and XX.xxx shall have full liability,
as primary obligors and not as a sureties, for the performance of any obligation
of the members of their respective Subgroups arising under this Agreement.
5.3 EFFECTIVENESS OF THIS AGREEMENT; SURVIVAL OF OBLIGATIONS. This
Agreement shall be effective from and after the Closing Date. With respect to
any particular item of Tax liability, the covenants and obligations contained in
this Agreement shall not terminate until a Final Determination as to such item
has been made.
5.4 COMPLETE AGREEMENT. This Agreement shall constitute the entire
agreement between the parties with respect to the subject matter hereof and
shall supersede all previous negotiations, commitments and writings with respect
to such subject matter.
5.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of [Delaware], without regard to the
principles of conflicts of laws thereof.
5.6 NOTICES. All notices and other communications hereunder shall be in
writing and shall be delivered by hand, mailed by registered or certified mail
(return receipt requested) or sent by courier or other express delivery that
provides for independent delivery verification to the parties at the following
addresses (or at such other addresses or a party as shall be specified by like
notice) and shall be deemed given on the date on which such notice or
communication is delivered to the addressed at the address specified below:
(a) If to AGC:
if by hand:
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Attention:
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if by mail:
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Attention:
(b) If to XX.xxx:
if by hand:
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Attention:
if by mail:
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Attention:
5.7 AMENDMENTS. This Agreement may not be modified or amended except by
an agreement in writing signed by the parties hereto.
5.8 SUCCESSORS AND ASSIGNS. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns; provided, however, that no party may assign
or delegate any of its rights or obligations under this Agreement (except to a
majority-owned subsidiary) without the consent of the other party, which consent
shall not be unreasonably withheld.
5.9 NO THIRD-PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties hereto and shall not be deemed to confer upon any third
parties any remedy, claim, liability, reimbursement, claim of action or other
right in excess of those existing without reference to this Agreement.
5.10 TITLES AND HEADINGS. Titles and headings to sections herein are
inserted for the convenience of reference only and are not intended to be party
of or to affect the meaning or interpretation of this Agreement.
5.11 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original. but which together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have caused their names to be
subscribed and executed by their respective authorized officers on the dates
indicated.
xxxxxxxxxxxxxxxxx.xxx inc.
By:_________________________________
Title: _____________________________
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Date
American Greetings Corporation
By:_________________________________
Title: _____________________________
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Date
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