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EXHIBIT 10.2
TAX SHARING AGREEMENT
THIS TAX SHARING AGREEMENT (the "Agreement"), dated as of this ___ day
of _________, 1997, by and between ITT HARTFORD GROUP, INC., a Delaware
corporation (hereinafter referred to as "THE HARTFORD"), and its subsidiaries
(hereinafter, as further defined in Article I, referred to as "Subsidiaries")
including HARTFORD LIFE, INC., a Delaware corporation and a subsidiary of THE
HARTFORD (hereinafter referred to as "HLI"), is intended to replace the existing
Tax Allocation Agreement between Hartford Fire Insurance Company and
Subsidiaries.
WITNESSETH:
WHEREAS, Hartford Fire Insurance Company and its Subsidiaries, while
being included in the consolidated U.S. corporate income tax return filed by ITT
Corporation, have been governed by the terms of the Tax Allocation Agreement,
dated December 31, 1992, which provides for the allocation of the Federal income
tax liability of the members of the group of corporations of which Hartford Fire
was the common parent;
WHEREAS, on December 19, 1995, the Board of Directors of ITT
Corporation carried out a distribution whereby the holders of record of ITT
Corporation Common Stock received all the outstanding shares of Common Stock of
THE HARTFORD, resulting in THE HARTFORD becoming a publicly traded company (the
"Distribution");
WHEREAS, the Distribution resulted in the deconsolidation of all of THE
HARTFORD companies that formerly had been included in ITT's consolidated Federal
tax return and in the reconsolidation on December 20, 1995 of a new affiliated
group with THE HARTFORD as its common parent;
WHEREAS, in accordance with the consolidated tax return rules THE
HARTFORD may be precluded from combining its life and nonlife companies in a
single consolidated tax return until five years have elapsed and as a result,
the group of life companies and a group of non-life subsidiaries may file
separate consolidated Federal income tax returns;
WHEREAS, HLI anticipates that in 1997 it may issue additional shares of
its authorized common stock via an initial public offering ("IPO") equal to 20%
or less of its outstanding shares; and
WHEREAS, as a result of the impact of the Distribution on the
consolidated tax return posture of THE HARTFORD and its Subsidiaries and of the
anticipated IPO and to reflect current agreements and administrative practices
not included in the Tax Allocation Agreement, THE HARTFORD and its Subsidiaries
desire to enter into a new tax sharing agreement.
NOW, THEREFORE, in consideration of the promises and of the mutual
undertakings contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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As used in this Agreement, the following terms will have the following
meanings (such meanings to be equally applicable to both the singular and the
plural forms of the terms defined):
"CODE" means the Internal Revenue Code of 1986, as amended, or any
successor thereto, as in effect for the taxable period in question.
"CONSOLIDATED GROUP" means the affiliated group of corporations (within
the meaning of Section 1504 of the Code) of which THE HARTFORD is the common
parent, or in the case of a Separate Consolidated Group, the affiliated group of
corporations (within the meaning of Section 1504 of the Code) of which a
Subsidiary of THE HARTFORD is the common parent.
"CONSOLIDATED GROUP RETURN" means the consolidated Federal income tax
return for a Consolidated Group.
"DIRECTOR OF TAXES" means such person who is appointed to fill such
position for THE HARTFORD.
"DISTRIBUTION" will have the meaning assigned to such term in the
recitals to this Agreement.
"EFFECTIVE DATE" means the date as set forth in Section 2.1 of this
Agreement.
"FINAL DETERMINATION" means the final resolution of liability for any
Tax for any taxable period, including any related interest or penalties, by or
as a result of: (i) a final and unappealable decision, judgment, decree or other
order of a court of competent jurisdiction; (ii) a closing agreement or accepted
offer in compromise under Sections 7121 or 7122 of the Code, or comparable
agreement under the laws of other jurisdictions, which resolves the entire Tax
liability for any Tax period; (iii) 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
Tax imposing jurisdiction; or (iv) any other final disposition as determined by
the Director of Taxes, including by reason of the expiration of the applicable
statute of limitations.
"HLI" will have the meaning assigned to such term in the preamble to
this Agreement.
"IPO" will have the meaning assigned to such term in the recitals to
this Agreement.
"IRS" means the United States Internal Revenue Service.
"IRS OVERPAYMENT RATE" will have the meaning assigned to such term in
Section 3.6 of this Agreement.
"IRS UNDERPAYMENT RATE" will have the meaning assigned to such term in
Section 3.6 of this Agreement.
"MEMBER" means a corporation (including the common parent) which is
included within a Consolidated Group.
"NET REVERSAL BENEFIT" will have the meaning assigned to such term in
Section 3.3(a) of this Agreement.
"REALIZED BENEFIT" means a reduction of tax liability resulting from
the use of an item of loss, deduction or credit in accordance with the ordering
rules prescribed by the Code and the regulations promulgated thereunder.
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"SEPARATE CONSOLIDATED GROUP" means an affiliated group (as defined
under Section 1504(a) of the Code) of any two or more Subsidiaries that are not
eligible to be included in THE HARTFORD Consolidated Return.
"SEPARATE CONSOLIDATED GROUP RETURN" means the consolidated Federal
income tax return for a Separate Consolidated Group.
"SEPARATE RETURN TENTATIVE MINIMUM TAX LIABILITY" will mean the
alternative minimum tax liability of a Member of a Consolidated Group determined
as if such Member were filing a separate income tax return under the Code with
adjustments consistent with those used in computing Separate Return Tax
Liability.
"SEPARATE RETURN REGULAR TAX LIABILITY" will mean the tax liability of
a Member of a Consolidated Group determined in accordance with Regulation
Section 1.1552-1(a)(2)(ii) as if such Member were filing a separate income tax
return under the Code. For purposes of determining the "Separate Return Tax
Liability" of a Member, the following principles apply:
(a) Limitations on the calculation of a deduction or the utilization of
tax credits or the calculation of a tax liability will be made on a
Consolidated Group basis, except to the extent that the Internal
Revenue Service holds through its published rulings that limitations
are done on a separate return basis in which case such ruling positions
will be followed. Accordingly, unless the IRS was to adopt a ruling
position to the contrary, the limitations provided in Code Sections
38(c), 56(a), 170(b)(2), 172(b)(2), and similar limitations will be
applied on a Consolidated Group basis.
(b) Elections as to tax credits and tax computations, which may have
been different from the consolidated treatment if separate returns were
filed, will follow and be consistent with those elections made on an
annual basis by the parent of the Consolidated Group for the
Consolidated Group Return.
"SUBSIDIARY" means any corporation, whether de jure or de facto, in
which THE HARTFORD directly or indirectly owns more than 50% of the equity
having the power to vote on or direct the affairs of the entity.
"TAX" or "TAXES" means with respect to a Consolidated Group or any
Subsidiary, any and all Federal, state or local taxes (i) based upon or measured
in whole or in part by net income, together with interest, penalties and other
additions thereto, imposed by the relevant Taxing Authority, and (ii) any gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease,
service, service use, withholding, payroll, employment, social security, excise,
severance, stamp, occupation, premium, property, windfall profits, customs,
duties or other taxes, fees, assessments or charges of any kind whatsoever,
together with interest, penalties and other additions thereto, imposed by the
relevant Taxing Authority.
"TAXING AUTHORITY" means the Internal Revenue Service or any other
domestic federal, state, or local governmental authority responsible for the
administration of any Tax.
"TAX ITEM" will have the meaning assigned to such term in Section
3.3(a) of this Agreement.
"TAX RETURN" means any return, filing, questionnaire or other document
required to be filed, including requests for extensions of time, filings made
with estimated Tax payments, claims for refund and amended returns that may be
filed, for any taxable period with any Taxing Authority in connection with any
Tax or Taxes (whether or not a payment is required to be made with respect to
such filing).
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"THE HARTFORD CONSOLIDATED GROUP RETURN" means the consolidated Federal
income tax return for THE HARTFORD Group.
"THE HARTFORD GROUP" means the affiliated group of corporations (within
the meaning of Section 1504 of the Code) of which THE HARTFORD is the common
parent.
"THE HARTFORD" will have the meaning assigned to such term in the
preamble to this Agreement.
ARTICLE II
PREPARATION AND FILING OF TAX RETURNS
SECTION 2.1. APPLICABILITY OF PROVISIONS OF AGREEMENT. This Agreement
is effective as of December 20, 1995 (the "Effective Date") for THE HARTFORD and
all of its Subsidiaries and supersedes the previous Tax Allocation Agreement for
all taxable periods ending after such Effective Date.
SECTION 2.2. TAX RETURN PREPARATION. The Director of Taxes will cause
to be timely prepared and filed all Tax Returns, including any Separate
Consolidated Group Return, for all Subsidiaries of THE HARTFORD and will be
responsible for the preparation and filing of any consents and requests for
extension of time within which to file any such Tax Return or any related
information. The Director of Taxes will have full responsibility and discretion
for the final reporting positions, elections and disclosures taken in all such
Tax Returns.
SECTION 2.3. CONSOLIDATED GROUP FEDERAL INCOME TAX RETURNS.
(a) THE HARTFORD Consolidated Return. Each of the Subsidiaries
will join in the filing annually of THE HARTFORD Consolidated Group
Return to the extent each is eligible to join in such return under the
provisions of the Code and the regulations promulgated thereunder.
(b) Separate Consolidated Return. In the event that any two or
more Subsidiaries are not eligible to be included in THE HARTFORD
Consolidated Group Return, but otherwise satisfy the requirements for
inclusion in a Separate Consolidated Group, such Subsidiaries will join
among themselves in the filing of a Separate Consolidated Group Return
until consolidation with THE HARTFORD Group is permitted. The terms and
provisions of this Agreement applicable to THE HARTFORD Consolidated
Group Return will apply to and govern with equal force and effect any
Separate Consolidated Group Return.
SECTION 2.4. STATE OR LOCAL INCOME TAX RETURNS. When two or more
Subsidiaries file combined, consolidated or unitary state or local Tax Returns
in certain jurisdictions, the general principles of this Agreement pertaining
to, but not limited to, the Director of Taxes' responsibility and discretion for
final reporting positions, elections and disclosures in such returns, the
allocation of tax charges and benefits, the authority over and the manner in
dealing with adjustments subsequent to filing of any Tax Returns and any
settlements of amounts due, will govern such combined, consolidated or unitary
state or local income tax returns with equal force and effect. The decision to
file on a combined, consolidated or unitary basis in any jurisdiction will be
made by the Director of Taxes.
SECTION 2.5. DOCUMENTATION. Each Subsidiary will furnish to the
Director of Taxes on a timely basis such information, schedules, analyses and
any other items as may be
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necessary to prepare and file any Tax Returns. The Subsidiaries that are members
of the Consolidated Group or, if applicable, a Separate Consolidated Group, will
execute and deliver all documentation reasonably required (including powers of
attorney, if requested) to enable the Director of Taxes to file, and to take all
actions necessary or incidental to the filing of, the Consolidated Group Return
(including, without limitation, the execution of Treasury Form 1122) or any
amendment of the Consolidated Group Return.
ARTICLE III
ALLOCATION AND PAYMENT OF TAXES ARISING FROM
CONSOLIDATED GROUP TAX RETURNS
SECTION 3.1. ACKNOWLEDGMENT OF ELECTION TO ALLOCATE TAX LIABILITY. The
elections made in previously filed Federal Tax Returns will continue to govern
the allocation of the Consolidated Group's Federal regular income tax liability
between each member of the Consolidated Group (hereinafter, "Member"). Pursuant
to the elections, the Consolidated Group's Federal regular income tax liability
will be allocated in the following manner:
(a) Tax Charge. In accordance with the method set forth in
Code Sections 1552(b) and 1552(a)(1) and Regulation Section
1.1552-1(a)(1), the consolidated Federal regular income tax liability
will be apportioned among the Members in accordance with the ratio
which that portion of the consolidated taxable income attributable to
each Member having taxable income bears to the sum of the taxable
incomes of all such Members. Each Member will pay the parent of the
Consolidated Group its allocated consolidated Federal tax liability as
determined hereunder and pursuant to the Settlement provisions of
Section 3.8 of this Agreement;
(b) Tax Benefit. Pursuant to an election to follow the method
described in Regulation Section 1.1502-33(d)(3), an additional
liability will be allocated to each Member which, as a result of net
operating losses, excess charitable contributions, foreign tax credits,
investment tax credits or similar items arising from or generated by
the activities of another Member or Members in either a separate return
year or a consolidated return year, has an allocated tax liability
determined under Section 3.1(a) above that is smaller than its Separate
Return Regular Tax Liability. The additional liability allocated to
each Member will be equal to 100% of the excess, if any, of (1) the
Separate Return Regular Tax Liability of such Member for the taxable
year, over (2) the allocated tax liability determined under Section
3.1(a) above. The total of any additional amounts allocated to all such
Members for the consolidated return year will be paid (pursuant to the
Settlement provisions of Section 3.8 of this Agreement) to those other
Members which generated such losses, credits or deductions to which
such total is attributable (hereinafter, referred to as "Loss
Members"). Such payments to Loss Members will be made pursuant to a
consistent method which reasonably reflects such items (such
consistency and reasonableness to be determined by the Director of
Taxes) and which is substantiated by specific records maintained by the
Consolidated Group for such purposes.
SECTION 3.2. ALTERNATIVE MINIMUM TAX ("AMT"). The following rules apply
to the allocation of AMT liability and AMT credit to the Members of the
Consolidated Group.
(a) AMT Liability. The consolidated alternative minimum tax
liability will be allocated for any consolidated Tax Return year to
each Member whose Separate Return Tentative Minimum Tax Liability
exceeds its Separate Return Regular Tax Liability. The total
alternative minimum tax liability shown on the Consolidated
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Group's Tax Return will be apportioned to each Member according to the
ratio of (i) the excess of its Separate Return Tentative Minimum Tax
Liability over its Separate Return Regular Tax Liability to (ii) the
total of all such Members' excess Separate Return Tentative Minimum Tax
Liability over Separate Return Regular Tax Liability. For purposes of
this allocation, if a Member has a regular tax net operating loss on a
separate return basis, the Separate Return Tentative Minimum Tax
Liability for that Member will be computed on the difference between
such Member's regular tax net operating loss and any smaller
alternative tax net operating loss or any alternative minimum taxable
income.
(b) AMT Credit. Any minimum tax credit realized in subsequent
years (determined on a FIFO basis) by the Consolidated Group as a
result of incurring the alternative minimum tax liability will be
allocated to the Member to which the original alternative minimum tax
liability was allocated. If less than the full minimum tax credit is
realized in a year, the amount of such minimum tax credit will be
allocated to each Member that incurred the original alternative minimum
tax liability in the following manner:
(i) first to each such Member which can or could have
used the credit on a separate return basis according
to the proportion that the original alternative
minimum tax liability borne by each such Member bears
to the sum of the original alternative minimum tax
liabilities borne by all such Members;
(ii) then, any remaining minimum tax credit will be
allocated to any remaining Members which incurred the
original alternative minimum tax liability according
to the proportion that the original alternative
minimum tax liability borne by such remaining Members
bears to the original alternative minimum tax
liability borne by all such remaining Members.
In no case under clauses (i) or (ii) above, however, will any Member be
allocated an amount of AMT Credit in excess of its original alternative
minimum tax liability.
(c) Effects on Basis and Earnings and Profits; AMT Credit of
Departing Members; Effect of Finalized AMT Regulations. The
consolidated alternative minimum tax, for stock basis adjustment and
earnings and profits purposes, will be allocated to each Member under
the allocation method set out in Proposed Regulations Sections
1.1502-55 and 1.1552-1(g) issued on December 30, 1992 (the "Proposed
Regulations"). The minimum tax credit will be allocated to Members who
cease to be a Member of the Consolidated Group pursuant to Proposed
Regulation Section 1.1502-55(h). However, to the extent such Member
was not allocated a corresponding amount of alternative minimum tax in
an earlier or the same year, such Member will pay to or be paid by THE
HARTFORD prior to the Member leaving the Consolidated Group an amount
equal to the difference between what was allocated earlier and the
amount allocated upon departure. If temporary or final regulations are
issued which differ from the Proposed Regulations, this Agreement will
be amended to reflect such changes to the extent and with an effective
date deemed necessary or desirable by the Director of Taxes.
SECTION 3.3. CARRYBACKS OF LOSSES AND CREDITS.
(a) Benefits for Tax Items. In allocating the Consolidated
Group's Federal tax liability, each Member will be entitled to the tax
benefit that results from any of its
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net operating losses, net capital losses, deductions or credits (each,
a "Tax Item") that are carried back to a prior period Consolidated
Return. If the carryback of a Tax Item results in a carryforward or
carryback of a Tax Item into a taxable year of the Consolidated Group
or of other Members and such carryforward or carryback produces a
Realized Benefit, or other use, in such year or any subsequent year
after considering all other items of taxable income or credits
otherwise available to such other Members (a "Net Reversal Benefit"),
then an amount equal to such Net Reversal Benefit, when realized, will
be an additional liability for such year to be allocated to such other
Members of the Consolidated Group pursuant to Section 3.1(b) of this
Agreement. The benefit of any carryback of a Tax Item to any prior
period Consolidated Return will be taken into account only when and to
the extent that such carryback reduces the tax liability in a prior
period Consolidated Group Return or that any resultant Net Reversal
Benefit is realized. The Member generating, or otherwise bearing the
cost of, such Tax Item that has been carried back will be paid pursuant
to the Settlement provisions of Section 3.8 of this Agreement.
(b) AMT. To the extent that additional AMT arises in a prior
period Consolidated Return from a carryback of a Tax Item, then such
AMT will be allocated to the Member giving rise to such carryback and
such Member will be entitled to recover any Net Reversal Benefit
resulting from any AMT credit carryforwards associated with such AMT.
(c) Multiple Carrybacks of Tax Items. In the event that two or
more Tax Items are carried back to any prior period Consolidated
Return, their order of use will be determined by the Code and the
regulations promulgated thereunder. Where two or more carrybacks of Tax
Items have equal priority and cannot be used in full, each such
carryback will be used by the affected Members in the following manner:
(i) first, carrybacks of Tax Items by each Member will be absorbed to
the extent of such Member's results in the carryback year that made
possible the use of such Tax Items; and then, (ii) in proportion to the
total of the remaining carrybacks.
(d) Separate Return Years. If part or all of an unused Tax
Item is allocated to a Member pursuant to Regulation Section 1.1502-79,
and it is carried back or forward to a year in which such Member filed
a separate income tax return or a consolidated Federal income tax
return with another affiliated group, any refund or reduction in tax
liability arising from the carryback or carryforward will be retained
by such Member.
(e) Carrybacks of Net Operating Losses. Notwithstanding the
foregoing provisions of this Section 3.3, each Member agrees that
unless it obtains the consent of the Director of Taxes, it will waive
the carryback of any net operating loss.
SECTION 3.4. SUBGROUP METHOD. When a Consolidated Return combines the
taxable income of life and nonlife companies, the determination of Tax Charges
and Tax Benefits described in Sections 3.1(a) and 3.1(b) above will be made by
the separate calculation of the taxable income of life insurance company Members
and the taxable income of nonlife insurance company Members on a life and
nonlife subgroup basis in accordance with provisions set forth in Regulation
Section 1.1502-47. The calculation of any limitations that may be required by
Regulation Section 1.1502-47, such as the calculation of the amount of
offsettable nonlife net operating losses, will be determined with reference to
and on the basis of the taxable income reported in the Consolidated Return.
SECTION 3.5. SUBSEQUENT ADJUSTMENTS. If the consolidated Federal income
tax liability is adjusted for any taxable period, whether by means of an amended
return, claim for
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refund, assessment arising from an Internal Revenue Service audit examination,
or at the conclusion of any appeal or litigation, or to reflect the results of
any Final Determination, the liability of each Member will be recomputed under
Sections 3.1 and 3.2 of this Agreement to give effect to such adjustments. The
parent of the Consolidated Group will make payment to each Member for any
reduction in its share of the consolidated Federal income tax liability, and in
the case of an increase in tax liability, each Member will pay the parent of the
Consolidated Group its allocable share of such increased consolidated Federal
income tax liability, in each case together with any interest or penalties
relating thereto as provided in Sections 3.6 and 3.7 of this Agreement. Any
payments required under this Section 3.5 will be made in accordance with the
provisions of Section 3.8(c) of this Agreement.
SECTION 3.6. INTEREST. For purposes of this Agreement, unless
specifically provided otherwise, interest will be computed at the Federal
statutory rate used, pursuant to Section 6621 of the Code, in computing the
interest payable to the IRS (the "IRS Underpayment Rate") or by the IRS (the
"IRS Overpayment Rate") on the net balance due to or from the IRS. Interest will
be allocated in the following manner: Members entitled to refunds will be
allocated interest at the IRS Overpayment Rate; then, as to the remaining
Members, the amount of such allocated interest plus the amount of any interest
to be paid to the IRS will be allocated to such remaining Members in proportion
to each Member's increase in Separate Return Regular Tax Liability. Interest
determinations for Members will be made by the Director of Taxes at such time as
the IRS finally determines interest owed for the tax year of the Consolidated
Group Return.
SECTION 3.7. PENALTIES. Any penalty will be allocated to such Members
and upon such basis as the Director of Taxes deems just and proper in view of
all applicable circumstances. It is the general intent of this Agreement that
any penalty incurred by the Consolidated Group will be paid by the Member or
Members whose actions or inactions, income, deductions, credits or allowances
caused such penalty.
SECTION 3.8. SETTLEMENTS.
(a) Estimated Taxes. With respect to each quarterly estimated
tax payment, the Director of Taxes will notify Members of their
assessed share of estimated tax payments to be made on the projected
consolidated Federal income tax liability for the tax year. Payment to
the parent of the Consolidated Group will be made 24 hours in advance
of the payment to the Internal Revenue Service. Such Member will
receive credit for such estimated payments against its share of the
apportioned consolidated Federal income tax liability as determined
under this Article III. Any payment not made within the prescribed time
period thereafter will bear interest at the IRS Underpayment Rate.
(b) Tax Returns. A determination of a Member's apportioned
consolidated Federal income tax liability under Sections 3.1 or 3.2
hereof will be made by the Director of Taxes. Payments resulting from
such determination of tax liability, adjusted to reflect any payments
previously made pursuant to Section 3.8(a) hereof, will be made by or
to the parent of the Consolidated Group to or by each Member 24 hours
prior to the due date of such tax return without regard to any filing
extensions. If the tax return filing is extended, an additional
computation of a Member's tax liability will be made when the
Consolidated Group Return is filed and adjustments that require
additional payments will be paid by each affected Member within 24
hours of having received written notice of assessment for such
liability from the Director of Taxes. Any payment not made within the
prescribed time period thereafter will bear interest at the IRS
Underpayment Rate.
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(c) Subsequent Adjustments. Any payment required to be made
pursuant to Section 3.5 hereof with respect to any tax return will be
made by the Member obligated to make such payment (i) in the case of a
refund of tax, within 24 hours after receipt (whether by way of
payment, credit, or offset against any payments due or otherwise) of
such refund or (ii) in the case of the payment of tax with respect to
any such tax return, within 24 hours of the delivery of written notice
of assessment for such liability from the Director of Taxes. Any
payment described in clause (i) and any demand for payment described in
clause (ii) will be accompanied by a calculation setting forth the
basis for the amount paid or demanded. Any payment not made within the
prescribed time period thereafter will bear interest at the IRS
Underpayment Rate.
(d) Tax Payments and IRS Refunds. Notwithstanding the
foregoing provisions of Section 3.8, when any tax payment is due to any
Member from the parent of the Consolidated Group and a refund is due
from the Internal Revenue Service, the parent of the Consolidated Group
may defer settlement with such Member and make the required settlement
payment within 24 hours of the receipt of such refund.
(e) Manner of Settlement. All settlements required under this
Agreement will be in U.S. dollars. Any settlement with the IRS for any
matter falling within the scope of this Agreement is the responsibility
of and will be determined by the Director of Taxes.
SECTION 3.9. INTERNAL REVENUE SERVICE LEVY. In the event that the
Internal Revenue Service levies upon any Member's assets for unpaid taxes in
excess of the amount charged in Sections 3.1 and 3.2 hereof, then such Member
will be indemnified primarily by the Members whose liability gave rise to such
IRS action, and if such Members are unable to provide indemnification, then
secondarily from all other Members that are parties to this Agreement.
SECTION 3.10. RECORDS. Notwithstanding the termination of this
Agreement, any Member included in a Consolidated Group Return may inspect during
regular business hours records of any other Member relating to such Consolidated
Group Return, including, but not limited to, returns, supporting schedules,
workpapers, correspondence and other documents.
ARTICLE IV
COOPERATION; TAX CONTROVERSIES
SECTION 4.1. COOPERATION.
(a) Administrative Compliance. THE HARTFORD and each
Subsidiary will cooperate fully and to the extent reasonably requested
by each other in connection with the preparation and filing of any Tax
Return or the conduct of any audit, dispute, proceeding, suit or action
concerning any issues or any other matter contemplated hereunder. Such
cooperation will include, without limitation: (i) the retention and
provision on demand of books, records, documentation or other
information relating to any Tax matter until the later of either (I)
the expiration of the applicable statute of limitation (giving effect
to any extension, waiver, or mitigation thereof) or (II) in the event
any claim has been made under this Agreement for which such information
is relevant, until a Final Determination with respect to such claim;
(ii) the provision of additional information with respect to and
explanation of tax practices (elections, accounting methods,
conventions and principles of taxation) and material provided under
clause (i) of this Section 4.1; (iii) the execution of any document
that may be
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necessary or reasonably helpful in connection with the filing of any
Tax Return by any Member of a Consolidated Group, or in connection with
any audit, proceeding, suit or action addressed in the preceding
sentence; and (iv) the use of the Subsidiary's best efforts to obtain
any documentation from a governmental authority or a third party that
may be necessary or helpful in connection with the foregoing. Each
Subsidiary will make its employees and facilities available on a
mutually convenient basis to facilitate such cooperation and will
retain as permanent records all documentation necessary to enable it to
determine any obligation under this Agreement. The records described
above will be made available to the Director of Taxes within a
reasonable time upon request and may be photocopied on an as needed
basis.
(b) Providing Advice and Notice. THE HARTFORD and each
Subsidiary will use reasonable efforts to keep each other advised as to
the status of Tax audits and litigation involving any issue which
relates to any Tax of the Consolidated Group or could give rise to the
liability of the Consolidated Group (or any Member thereof) under this
Agreement ( a "Liability Issue"). THE HARTFORD and each Subsidiary will
each promptly notify the other of any inquiries by any Taxing Authority
or any other administrative, judicial or other governmental authority
that relate to any material amount of Tax that may be imposed on the
other or any Subsidiary of the other that might arise under this
Agreement. Without limiting the foregoing, each Subsidiary will
promptly furnish to the Director of Taxes upon receipt a copy of the
revenue agent's report or similar report, notice of proposed
adjustment, or notice of deficiency received by it relating to any
Liability Issue or any adjustment referred to in Section 4.1(c) hereof.
(c) Consulting on Proposed Tax Adjustments. The Director of
Taxes will advise and consult with each Subsidiary with respect to any
proposed Tax adjustments that are the subject of an IRS audit or
investigation or are the subject of litigation, which may affect any
Tax attribute of such Subsidiary.
SECTION 4.2. TAX CONTROVERSIES. Subject to the cooperation provisions
of Section 4.1, the Director of Taxes will have full responsibility and
discretion in the handling of and concluding settlements for any Tax
controversy, including, without limitation, an audit, a protest to the Appeals
Division of the IRS, and litigation in Tax Court or any other court of competent
jurisdiction, or any matter relating to a Final Determination, involving a Tax
Return of the Consolidated Group or of any Subsidiary.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. TERMINATION. In the event any Subsidiary ceases to be a
direct or indirect subsidiary of THE HARTFORD for any reason whatsoever, this
Agreement will be terminated as to such Subsidiary, except that the obligations
of all the parties will remain in full force and effect with respect to: (a) any
period of time during the taxable year in which the termination occurs for which
the income of the terminating Subsidiary was included in the Consolidated Group
Return, and (b) for any Consolidated Group Return tax year in which a Subsidiary
was an includible corporation and for which an adjustment has been made as
described in Section 3.5 of this Agreement. Additionally, to the extent that a
Tax Item carries back from a separate return of a Subsidiary that previously was
an includible corporation of the Consolidated Group to a Consolidated Group
Return, the provisions of Section 3.3 of this Agreement will continue to apply
to such Subsidiary.
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SECTION 5.2. DISPUTE RESOLUTION. Any disagreements between the Director
of Taxes and any party to this Agreement as to the meaning, interpretation,
application or enforceability of any provision of this Agreement will be
reviewed by THE HARTFORD's Chief Financial Officer. If any disagreement remains
after any such review, that disagreement will be resolved by arbitration. In
such case, the arbitrator will be a retired or former judge of the United States
Tax Court or such other qualified person as the relevant parties may agree to
designate, provided that such individual has had substantial experience with
regard to settling complex Tax disputes. The decision of the arbitrator will be
absolutely binding.
SECTION 5.3. SUCCESSORS AND ASSIGNS. A party's rights and obligations
under this Agreement may not be assigned without the prior written consent of
the other parties to this Agreement. This Agreement will be binding upon and
inure to the benefit of each party hereto and their respective successors and
assigns.
SECTION 5.4. COMPLETE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and supersedes all prior agreements of the parties in connection with
such subject matter. No alteration, amendment or modification of any of the
terms of this Agreement will be valid unless made by an instrument signed in
writing by an authorized officer of each party hereto.
SECTION 5.5. NO THIRD-PARTY BENEFICIARIES. This Agreement is solely for
the benefit of the parties to this Agreement and should not be deemed to confer
upon third parties any remedy, claim, liability, reimbursement, claim of action
or other right in excess of those existing without this Agreement.
SECTION 5.6. LEGAL ENFORCEABILITY. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction will, as to that
jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions. Any prohibition
or unenforceability of any provision of this Agreement in any jurisdiction will
not invalidate or render unenforceable the provision in any other jurisdiction.
SECTION 5.7. EXPENSES. Unless otherwise expressly provided in this
Agreement each party will bear any and all expenses that arise from its
respective obligations under this Agreement. In the event any party to this
Agreement brings an action or proceeding for the breach or enforcement of this
Agreement, the prevailing party in such action or proceeding, whether or not
such action or proceeding proceeds to final judgment, will be entitled to
recover as an element of its costs, and not as damages, such reasonable
attorneys' fees as may be awarded in the action or proceeding in addition to
whatever other relief to which the prevailing party may be entitled.
SECTION 5.8. GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of Connecticut.
SECTION 5.9. COUNTERPARTS. This Agreement may be executed in several
identical counterparts each of which will be deemed an original instrument, but
all of such counterparts will constitute but one and the same agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed, all as of the effective date first above set forth.
[SEPARATE COMPANY SIGNATURES REQUIRED]
