TAX MATTERS AGREEMENT
This TAX MATTERS AGREEMENT (this "Agreement") dated as of
____________, 2000, is made by and among Ceridian Corporation, a Delaware
corporation, to be renamed Arbitron Inc. ("Arbitron" and hereinafter
sometimes referred to as "Old Ceridian" for periods (including the portion of
any such period) ending on or prior to the Distribution Date) and New
Ceridian Corporation, a Delaware corporation , to be renamed Ceridian
Corporation ("New Ceridian").
WHEREAS, Old Ceridian conducted the Media Information business and
other businesses;
WHEREAS, the other businesses will be transferred to New Ceridian
pursuant to a Distribution Agreement dated as of _____________, 2000 (the
"Distribution Agreement") between Old Ceridian and New Ceridian;
WHEREAS, the Distribution Agreement provides for the execution and
delivery of this Agreement;
WHEREAS capitalized terms used herein that are not otherwise defined
herein have the meanings set forth in the Distribution Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, covenants and conditions contained herein, the parties hereto agree
as follows:
ARTICLE I
ADDITIONAL DEFINITIONS
1.1 ADDITIONAL TAX DEFINITIONS. For purposes of this Agreement,
the following definitions will apply:
(a) "Arbitron Income Taxes" means (i) all Income Taxes imposed
on, assessed against, collected with respect to, or measured by the net or
gross income, profits or receipts related to Arbitron and its Subsidiaries or
their respective assets or operations, that arise in, or are attributable to,
any and all periods (including the portion of any such period) beginning
after the Distribution Date and (ii) all Reserved Taxes, any Taxes resulting
from the breach by Arbitron of its covenants or representations in Sections
5.2, 5.3 and 5.5 and any Taxes referred to in Section 5.7(a) of this
Agreement.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Income Taxes" or "Income Tax" means any and all liability
for any taxes imposed on the income of a corporation, including without
limitation, any liability under the Code and all federal, state, local, and
foreign income, profits, gross receipts and unitary taxes or similar taxes or
other assessments imposed with respect thereto and any interest, penalties or
additions with respect of such tax, and shall include, any transferee or
secondary liability (whether imposed by law, contractual agreement or
otherwise) any liability in respect of any tax as a result of being a member
of any affiliated, consolidated, combined, unitary or similar group.
(d) "Old Ceridian Income Taxes" means all Income Taxes imposed
on, assessed against, collected with respect to, or measured by the net or
gross income, profits or receipts related to Old Ceridian and the
Subsidiaries of Old Ceridian or their respective assets or operations that
arise in, or are attributable to, any and all periods (including the portion
of any such periods) ending on or prior to the Distribution Date except for
(i) any Reserved Taxes and (ii) any Taxes resulting from the breach by
Arbitron of its covenants or representations in Sections 5.2, 5.3 and 5.5 and
any Taxes referred to in Section 5.7(a) of this Agreement. If there are any
Taxes described in (ii) of the preceding sentence, the income or gain giving
rise to such Taxes shall not be included in determining the amount, if any,
of Old Ceridian Income Taxes.
(e) "Post-Closing Period" means all taxable periods
beginning after the Distribution Date and the portion after the Distribution
Date of any taxable period that begins on or before the Distribution Date and
ends after the Distribution Date.
(f) "Pre-Closing Period" means all taxable periods ending on
or prior to the Distribution Date and the portion to and including the
Distribution Date of any taxable period that begins on or before the
Distribution Date and ends after the Distribution Date.
(g) "Pre-Closing Period Sales Taxes" means sales taxes
(including any interest, penalties or additions) with respect to transactions
of Old Ceridian and the Subsidiaries of Old Ceridian that arise in, or
attributable, to any and all periods (including the portion of any such
periods) ending on or prior to the Distribution Date.
(h) "Reserved Taxes" means an Income Tax liability
separately accrued on the balance sheet of Arbitron or its Subsidiaries as of
the Distribution Date.
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(i) "Ruling Request" means the 'Ceridian Corporation Section
355 Ruling Request' filed with the Internal Revenue Service on July 17, 2000.
(j) "Tax" or "Taxes" means Income Taxes and Pre-Closing
Period Sales Taxes.
(k) "Tax Returns" means any return, report, information
return or other documents (including any related supporting schedules,
statements, or information) filed or required to be filed with any Tax
authority or government entity in connection with the determination,
assessment or collection of any Taxes of any party or the administration of
any laws, regulations or administrative requirements relating to any Taxes
defined herein.
1.2 TAX PERIODS INCLUDING PRE-CLOSING AND POST-CLOSING ACTIVITY.
For purposes of determining Old Ceridian Income Taxes and Arbitron Income
Taxes, Income Taxes and Income Tax items for Tax periods that begin on or
prior to the Effective Date and end after the Distribution Date shall be
allocated and apportioned to the parties on the basis of an interim closing
of the books as of the end of the Distribution Date. Any Income Tax
adjustments occurring during such periods shall be allocated to the
Pre-Closing Period and the Post-Closing Period based on a simulated Tax
Return for each period. Where a change in method of accounting for Income
Taxes is required due to a legislative change which becomes effective for
such Tax period, the adjustment applicable to such Tax period shall be
apportioned to the parties on the basis of the ratio of the number of days in
the period to the number of days in the Tax period. To the extent permitted
by applicable law, New Ceridian and Arbitron shall take all reasonable
actions to end (or have the effect of ending) on the Distribution Date any
Tax periods of New Ceridian or its Subsidiaries that would otherwise end
after such date. Notwithstanding the foregoing, if the Distribution occurs in
December 2000, New Ceridian and Arbitron shall take all reasonable actions to
end any such Tax Periods, to the extent permitted by law, on December 31,
2000.
ARTICLE II
INDEMNITIES
2.1 INDEMNITIES.
(a) New Ceridian shall pay when due, and be responsible for,
all Old Ceridian Income Taxes and Pre-Closing Period Sales Taxes. New
Ceridian shall indemnify Arbitron and its Subsidiaries (net of tax benefit)
against any and all Old Ceridian Income Taxes and Pre-Closing Period Sales
Taxes and costs, expenses and liabilities (including reasonable attorneys'
and accounting
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fees) incurred in connection with the operation or enforcement of this
Section 2.1(a).
(b) Arbitron shall pay when due, and be responsible for, all
Arbitron Income Taxes. Arbitron shall indemnify New Ceridian and its
Subsidiaries (net of tax benefit) against any and all Arbitron Income Taxes
incurred in connection with the operation or enforcement of this Section
2.1(b).
(c) For the purposes of this Article II, Old Ceridian Income
Taxes and New Ceridian's obligation to indemnify Arbitron shall not include
any Income Tax relating to any timing adjustments, including deductions,
credits or reductions in income, which (i) give rise to an increase in the
Income Tax liability as related to the Pre-Closing Period and (ii) are
available to be used by Arbitron or its Subsidiaries on any Arbitron
Post-Closing Period Tax Return.
(d) New Ceridian shall be obligated to indemnify Arbitron or
its Subsidiaries for interest accrued and paid (net of tax benefit) on the
Income Tax liability paid by Arbitron or its Subsidiaries per Section 2.1(c)
of this Agreement. Such interest shall be limited to the amount accrued and
paid during the period of time which ends on the filing due date (excluding
any extensions) for the Tax period in which the timing adjustment is an
allowable deduction.
(e) New Ceridian shall not be obligated to indemnify
Arbitron or its Subsidiaries for any decrease to any net operating loss,
credit or other carryforward available to Arbitron or its Subsidiaries
resulting from adjustments to any item of income, deduction, credit or
exclusion on Tax Returns for which New Ceridian is responsible.
(f) Arbitron shall not be obligated to indemnify New
Ceridian or its Subsidiaries for any increase to any net operating loss
carryforward available to Arbitron or its Subsidiaries resulting from
adjustments to any item of income, deduction, credit or exclusion on Tax
Returns for which New Ceridian is responsible.
(g)(1) When, before January 1, 2004, a party is required to
make a payment pursuant to Sections 2.1(a), 2.1(b) or 2.1(d), it shall,
except as provided in Section 2.1(g)(3), make the payment when due in an
amount determined without regard to the "net of tax benefit" language. Except
to the extent that a tax benefit has been taken into account in determining
the amount of an offset under Section 2.1(g)(3), if and when the indemnified
party receives a tax benefit, then it shall pay to the indemnifying party an
amount equal to such tax benefit. For this purpose, an indemnified party
shall be treated as receiving a tax benefit when the amount of Taxes that the
party would otherwise be required to pay is reduced, including a reduction in
the amount of estimated taxes otherwise payable. For example, if a party
receives
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$100 with respect to a state tax liability and the payment of $100 of state
taxes results in a reduction in the payment of Federal estimated income taxes
of $35, there has been a $35 tax benefit and the indemnified party is
required to pay $35 to the indemnifying party when the estimated tax return
is filed. Notwithstanding the foregoing, to the extent that the indemnified
party has not received a tax benefit by December 31, 2003 or that benefit has
not been taken into account in determining an offset under Section 2.1(g)(3),
the indemnified party shall pay to the indemnifying party, on December 31,
2003, an amount equal to (i) the tax benefit that the indemnified party would
receive if it had sufficient income to be taxed at the highest corporate
Federal income tax rate less (ii) the sum of (y) the tax benefit previously
received plus (z) the tax benefit taken into account in computing an offset
under Section 2.1(g)(3).
(g)(2) If , on or after January 1, 2004, a party is required
to make a payment pursuant to Sections 2.1(a), 2.1(b) or 2.1(d), it shall
make the payment when due in an amount determined taking in account the "net
of tax benefit" language. For this purpose, the reduction in the amount of
the payment shall be equal to the tax benefit that the indemnified party
would receive if it had sufficient income to be taxed at the highest
corporate Federal income tax rate.
(g)(3) If, pursuant to the first sentence of Section
2.1(g)(1), the indemnifying party is required to make a payment without
regard to the "net of tax benefit" language and if that party has previously
received a payment pursuant to Sections 3.1 or 3.2 that was reduced in amount
in accordance with the last sentence of Section 3.1 or 3.2, then, the
indemnifying party shall reduce the amount of the payment that would
otherwise be made in accordance with the first sentence of Section 2.1(g)(1)
by the lesser of (i) the amount of the reduction pursuant to the last
sentence of Section 3.1 or 3.2 that has not been previously taken into
account under this Section 2.1(g)(3) and (ii) the tax benefit that the
indemnified party under Section 2.1(a), 2.1(b) or 2.1(d) would receive if it
had sufficient income to be taxed at the highest corporate Federal income tax
rate.
(g)(4) If, in applying Section 2.1(g), the parties cannot
agree on the amount of any tax benefit, they will seek to resolve any such
dispute as quickly as possible. However, in the event that the parties are
unable to resolve such dispute promptly, the matter shall be referred to a
mutually acceptable accounting firm of nationally recognized standing (whose
fees are to be borne 50% by New Ceridian and 50% by Arbitron).
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ARTICLE III
REFUNDS
3.1 NEW CERIDIAN REFUNDS. New Ceridian shall be entitled to all
refunds related to Old Ceridian Income Taxes and Pre-Closing Sales Taxes.
Arbitron shall cooperate with New Ceridian in obtaining any such refunds in
the manner required by Article VI of this Agreement. Arbitron shall promptly
assign and remit (and shall cause its Subsidiaries promptly to assign and
remit) to New Ceridian an amount equal to any refunds of, or credits against,
any Taxes received and realized by them (including interest thereon, if any)
to the extent attributable to Old Ceridian Income Taxes or Pre-Closing Period
Sales Taxes. To the extent that any such refund, credit or interest is
included in the income of Arbitron for Income Tax purposes, the amount
assigned and remitted to New Ceridian shall be reduced by 38% of such income.
3.2 ARBITRON REFUNDS. Arbitron shall be entitled to all refunds of
Arbitron Income Taxes and New Ceridian shall cooperate with Arbitron in
obtaining such refunds in the manner required by Article VI of this
Agreement. New Ceridian shall promptly assign and remit (or cause to be
promptly assigned and remitted) to Arbitron an amount equal to any refunds
of, or credits against, any Income Taxes received and realized by New
Ceridian or its Subsidiaries (including interest thereon, if any), to the
extent attributable to Arbitron Income Taxes. To the extent that any such
refund, credit or interest is included in the income of New Ceridian or its
Subsidiaries for Income Tax purposes, the amount assigned and remitted to
Arbitron shall be reduced by 38% of such income.
ARTICLE IV
TAX RETURNS
4.1 PREPARATION AND FILING.
(a) New Ceridian shall prepare or caused to be prepared all
Tax Returns relating to Old Ceridian Income Taxes and Pre-Closing Period
Sales Taxes. Such Tax Returns shall be prepared in a manner that (i) is
consistent with prior practice (including without limitation as to Tax and
accounting methods, conventions and elections), and (ii) apportions items
equitably from period to period. Arbitron and its Subsidiaries shall
cooperate with New Ceridian in the filing of all such returns, and, if
necessary, sign the Tax Returns. New Ceridian shall submit a draft of the
portions of any such Tax Return that relate to the Media Information Business
to Arbitron for Arbitron's review and approval at least 15 days prior to the
respective due dates of such Tax Returns and Arbitron shall comment on such
Tax Returns by the earlier of 15 days from the receipt or 5 days prior to the
respective due dates of such Tax Returns. Arbitron acknowledges, however,
that New Ceridian will timely file all such Tax Returns notwithstanding the
failure by Arbitron to reveiw such Tax Returns or such disagreement between
New Ceridian and Arbitron with respect to such Tax Returns.
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(b) Arbitron shall prepare or cause to be prepared all returns
involving Arbitron Income Taxes except those returns prepared by New Ceridian
pursuant to Section 4.1(a) of this Agreement.
(c) Arbitron, upon its request, shall be entitled to copies of
the Old Ceridian Income Tax Returns.
4.2 TAX RETURN PAYMENTS. Amounts shown due on any Tax Returns
shall be timely paid by the party responsible therefor as determined in
accordance with Article II of this Agreement (the "Responsible Party"),
irrespective of which party is obligated to prepare or file such Tax Return
under this Article IV. The party obligated to file a particular Tax Return
(the "Filing Party") has the right (but not the obligation, unless it is the
Responsible Party) to pay the Tax shown due thereon, in which case the
Responsible Party shall immediately reimburse the Filing Party for the
payment of such Tax.
ARTICLE V
REPRESENTATIONS AND COVENANTS
5.1 NEW CERIDIAN REPRESENTATIONS. New Ceridian represents and
warrants as of the date hereof, and covenants that on the Distribution Date:
(1) there is no plan or intention by New Ceridian to purchase any of its
outstanding stock after the Distribution other than through stock purchases
that meet the requirements of Rev. Proc. 96-30, (2) there is no plan or
intention by New Ceridian to liquidate New Ceridian, merge New Ceridian with
any other corporation (other than the merger of a wholly-owned subsidiary of
New Ceridian into New Ceridian for the purpose of effectuating a name change
to "Ceridian Corporation"), or sell or otherwise dispose of the assets of New
Ceridian other than in the ordinary course of business, (3) payments made in
connection with all continuing transactions between Arbitron and New Ceridian
(and entities in their respective groups) will be at fair market value based
on the terms and conditions arrived at by the parties bargaining at arm's
length, (4) the Distribution is not part of a plan (or series of related
transactions) pursuant to which one or more persons acquire directly or
indirectly New Ceridian stock representing a "50-percent or greater interest"
within the meaning of Section 355(e) of the Code, (5) there is no plan or
intention by New Ceridian to enter into any negotiations, agreements, or
arrangements with respect to transactions or events (including stock
issuance's, pursuant to the exercise of options or otherwise, option grants,
capital contributions, or acquisitions, but not including the Distribution)
that may cause the Distribution to be treated as part of a plan pursuant to
which one or more persons acquire directly or indirectly New Ceridian stock
representing a 50-percent or greater interest within the meaning of Section
355(e) of the Code, and (6) there is no plan or intention by New
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Ceridian to otherwise take any action inconsistent with the information and
representations set forth in the Ruling Request.
5.2 ARBITRON REPRESENTATIONS. Arbitron represents and warrants as
of the date hereof, and covenants that on the Distribution Date: (1) there is
no plan or intention by Arbitron to purchase any of its outstanding stock
after the Distribution other than through stock purchases that meet the
requirements of Rev. Proc. 96-30, (2) there is no plan or intention by
Arbitron to liquidate Arbitron, merge Arbitron with any other corporation
(other than a merger of a wholly-owned subsidiary of Old Ceridian into Old
Ceridian for the purpose of effectuating a name change to "Arbitron Inc."),
or sell or otherwise dispose of the assets of Arbitron other than in the
ordinary course of business, (3) payments made in connection with all
continuing transactions between Arbitron and New Ceridian (and entities in
their respective groups) will be at fair market value based on the terms and
conditions arrived at by the parties bargaining at arm's length, (4) the
Distribution is not part of a plan (or series of related transactions)
pursuant to which one or more persons acquire directly or indirectly Arbitron
stock representing a "50-percent or greater interest" within the meaning of
Section 355(e) of the Code, and (5) there is no plan or intention by Arbitron
to enter into any negotiations, agreements, or arrangements with respect to
transactions or events (including stock issuances, pursuant to the exercise
of options or otherwise, option grants, capital contributions, or
acquisitions, but not including the Distribution) that may cause the
Distribution to be treated as part of a plan pursuant to which one or more
persons acquire directly or indirectly Arbitron stock representing a
50-percent or greater interest within the meaning of Section 355(e) of the
Code, and (6) there is no plan or intention by Arbitron to otherwise take any
action inconsistent with the information and representations set forth in the
Ruling Request.
5.3 NEW CERIDIAN AND ARBITRON REPRESENTATIONS. Each of New
Ceridian and Arbitron, respectively, represent as of the date hereof, and
covenant that on the Distribution Date, neither New Ceridian nor Arbitron,
respectively (as applicable), is aware of any present plan or intention by
the current shareholders of Arbitron to sell, exchange, transfer by gift, or
otherwise dispose of any of their stock in, or securities of, Arbitron or New
Ceridian subsequent to the Distribution.
5.4 NEW CERIDIAN COVENANTS. New Ceridian covenants to Arbitron
that New Ceridian shall not take any action, or fail or omit to take any
action that would cause any of the representations set forth in Section 5.1
to be untrue. Moreover, (x) during the two-year period following the
Distribution Date, New Ceridian will not cease to be engaged in the active
trade or business relied upon for purposes of satisfying the requirements of
Section 355(b) of the Code in the Ruling Request, and (y) during the
applicable period provided in Section 355(e)(2)(B) of the Code with respect
to the Distribution, New Ceridian
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will not enter into any transaction or make any change in equity structure
(including stock issuances, pursuant to the exercise of options, option
grants or otherwise, capital contributions, or acquisitions, but not
including the Distribution) that may cause the Distribution to be treated as
part of a plan pursuant to which one or more persons acquire directly or
indirectly New Ceridian stock representing a "50-percent or greater interest"
within the meaning of Section 355(e) of the Code.
5.5 ARBITRON COVENANTS. Arbitron covenants to New Ceridian that
Arbitron shall not take any action, or fail or omit to take any action that
would cause any of the representations set forth in Section 5.2 to be untrue.
Moreover, (x) during the two-year period following the Distribution Date,
Arbitron will not cease to be engaged in the active trade or business relied
upon for purposes of satisfying the requirements of Section 355(b) of the
Code in the Ruling Request, and (y) during the applicable period provided in
Section 355(e)(2)(B) of the Code with respect to the Distribution, Arbitron
will not enter into any transaction or make any change in equity structure
(including stock issuances, pursuant to the exercise of options, option
grants or otherwise, capital contributions, or acquisitions, but not
including the Distribution) that may cause the Distribution to be treated as
part of a plan pursuant to which one or more persons acquire directly or
indirectly Arbitron stock representing a "50-percent or greater interest"
within the meaning of Section 355(e) of the Code.
5.6 EXCEPTIONS. Notwithstanding the foregoing, New Ceridian and
Arbitron may take actions inconsistent with the covenants contained in
Sections 5.4 and 5.5 above, if:
(a) New Ceridian obtains a ruling from the IRS to the effect
that such actions should not result in the Distribution being taxable to
Arbitron or its shareholders; or
(b) Arbitron obtains a ruling from the IRS to the effect that
such actions should not result in the Distribution being taxable to Arbitron
or its shareholders; or
(c) New Ceridian obtains an opinion of counsel recognized as
an expert in federal income tax matters and acceptable to Arbitron to the
same effect as in Section 5.6(a), provided that such opinion is reasonably
acceptable to Arbitron; or
(d) Arbitron obtains an opinion of counsel recognized as an
expert in federal income tax matters and acceptable to New Ceridian to the
same effect as in Section 5.6(b), provided that such opinion is reasonably
acceptable to New Ceridian.
5.7 SECTION 355(e) TAXES.
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(a) If Section 355(e) of the Code is applicable because it is
determined that the Distribution was part of a plan (or series of related
distributions) pursuant to which one or more persons acquired directly or
indirectly Arbitron stock representing a "50-percent or greater interest"
within the meaning of Section 355(e), any resulting Taxes shall constitute
Arbitron Income Taxes.
(b) If Section 355(e) of the Code is applicable because it is
determined that the Distribution was part of a plan (or series of related
distributions) pursuant to which one or more persons acquired directly or
indirectly New Ceridian stock representing a "50-percent or greater interest"
within the meaning of Section 355(e), any resulting Taxes shall constitute
Old Ceridian Income Taxes.
5.8 TERMINOLOGY. For Purposes of this Article V the term "Arbitron
stock" includes stock of Old Ceridian prior to its name change.
ARTICLE VI
INFORMATION EXCHANGE
6.1 COOPERATION. New Ceridian, Arbitron and their respective
Subsidiaries shall cooperate with and make available to each other such Tax
data, Tax Returns, and other information as may be reasonably required in
connection with (i) the preparation or filing of any Tax Return, election,
consent or certification, or any claim for refund, (ii) any determinations of
liability for Taxes, or (iii) any audit, examination or other proceeding in
respect of Taxes ("Tax Data"). Such cooperation shall include without
limitation making their respective employees and independent auditors
reasonably available on a mutually convenient basis for all reasonable
purposes, including without limitation to provide explanations and background
information and to permit the copying of the books, records, schedules, work
papers, notices, revenue agent reports, settlement or closing agreements and
other documents containing the Tax Data ("Tax Documentation").
6.2 RETENTION. The Tax Data and the Tax Documentation shall be
retained until one year after the expiration of the applicable statute of
limitations (including extensions thereof); provided, however, that in the
event an audit, examination, investigation or other proceeding has been
instituted prior to the expiration of the applicable statute of limitations
(or in the event of any claim under this Agreement), the information shall be
retained until there is a final determination thereof (and the time for any
appeal has expired).
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6.3 EXPENSES. Subject only to the provisions of Article VI of this
Agreement, each party shall cooperate in the manner described in this Article
VI at its own expense.
6.4 NOTIFICATION TO SHAREHOLDERS. New Ceridian will undertake
reasonable efforts to assist Arbitron, and Arbitron will provide each
Arbitron shareholder who receives the New Ceridian shares pursuant to the
Distribution with the information necessary to comply with the requirements
of Code Section 355 and all regulations thereunder which relate to the
statements that are to be filed by such shareholders with their federal
income tax return to show the applicability of Code Section 355 to the
Distribution.
ARTICLE VII
CONTEST RIGHTS
7.1 NOTICE AND COOPERATION.
(a) If any claim, demand, assessment (including a notice of
proposed assessment) or other assertion is made for Taxes ("Tax Claim")
against a party entitled to indemnification with respect thereto pursuant to
this Agreement (an "Indemnitee") or if the Indemnitee receives any notice
from any jurisdiction with respect to any current or future audit,
examination, investigation or other proceeding ("Proceeding"), the Indemnitee
shall promptly notify the party obligated to so indemnify (the "Indemnitor")
of such Tax Claim or notice of Proceeding. If a notice of a Tax Claim or
Proceeding is not given to an Indemnitor within a sufficient period of time
or in reasonable detail, Indemnitor shall not be liable to Indemnitee to the
extent that Indemnitor's position is actually prejudiced as a result thereof.
If an Indemnitor receives notice of a Tax Claim or notice of Proceeding for
which the Indemnitor is responsible under the Agreement, such Indemnitor
shall promptly notify the Indemnitee thereof if such Tax Claim or Proceeding
could directly or indirectly affect (adversely or otherwise) any Indemnitee
(determined without regard to this Agreement).
(b) The party controlling the defense, settlement or
compromise of any Proceeding or any Tax claim shall keep the other party
hereto duly informed of the progress thereof to the extent such Proceeding or
Tax Claim could directly or indirectly affect (adversely or otherwise) such
other party (determined without regard to this Agreement).
(c) If the Indemnitor controls the defense, settlement or
compromise of any Proceeding or Tax Claim for which it is responsible, the
Indemnitee shall nevertheless cooperate in such defense, settlement or
compromise as and to the extent reasonably requested by Indemnitor. Such
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cooperation shall be at Indemnitor's expense (on a current basis), including
all liabilities, costs and expenses (including reasonable attorneys' fees and
accounting fees but excluding in-house legal or tax assistance) incurred in
connection with such cooperation and authorized by Indemnitor.
(d) If the Indemnitor does not control the defense, settlement
or compromise of any Proceeding or Tax Claim for which it is responsible, it
shall nevertheless (i) cooperate (at its own expense) in such defense,
settlement or compromise to the extent reasonably requested by Indemnitee and
(ii) indemnify (on a current basis) Indemnitee against any reasonable
liabilities, costs and expenses (including reasonably attorney's and
accounting fees but excluding in-house legal or tax assistance) arising out
of, or incident to, the Proceeding or Tax Claim, including without limitation
those incurred in connection with the defense, settlement or compromise
thereof.
7.2 CONTROL.
(a) Except as otherwise provided in Section 7.2(b) or Section
7.3 hereof, the Indemnitor shall have the right to control the defense,
settlement or compromise of any Proceeding or Tax Claim to the extent it is
responsible therefor pursuant to Article II of this Agreement.
(b) Notwithstanding the provisions of Section 7.2(a) hereof
(and subject to the provisions of Section 7.3 hereof), an Indemnitee (in lieu
of the Indemnitor) shall have the right (but not the obligation) to control
the defense, compromise or settlement of any Proceeding or Tax Claim if (x)
the Indemnitor fails to do so or requests the Indemnitee to do so, or (y) the
Indemnitor is the subject of a voluntary bankruptcy, an adjudicated
bankruptcy, or an involuntary petition that has been filed and not discharged
within ninety days.
(c) The parties agree to provide an Indemnitor with any
authorizations, power of attorney, etc. as may be necessary to permit an
Indemnitor to pursue the action permitted by this Article VII.
7.3 APPROVAL.
(a) The Indemnitee shall not agree to a settlement or
compromise of any Proceeding or Tax Claim without the prior written consent
of the Indemnitor (which consent shall not be unreasonably withheld) if such
settlement or compromise will result in an obligation of the Indemnitor
pursuant to this Agreement.
(b) Arbitron shall not agree to a settlement or compromise of
any Proceeding or Tax Claim involving any Taxes resulting from the breach by
Arbitron of its covenants or representations in Sections 5.2, 5.3 and 5.5 and
any Taxes referred to in Section 5.7(a) of this Agreement without the prior
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written consent of New Ceridian (which consent shall not be unreasonably
withheld).
(c) A party receiving a written request for consent pursuant
to this Section 7.3 shall respond as soon as practicable and in no event
after the period of time beginning ten working days prior to the expiration
of the period for appealing the assessment or claim. The parties shall seek
to resolve any dispute with respect thereto as quickly as possible. However,
in the event the parties are unable to resolve such dispute promptly, the
matter shall be referred to a mutually acceptable accounting firm of
nationally recognized standing (whose fees are to be borne 50% by New
Ceridian and 50% by Arbitron).
ARTICLE VIII
MISCELLANEOUS
8.1 PRIOR TAX SHARING AGREEMENTS. The parties agree that effective
upon the consummation of the Distribution, all Tax agreements (other than
this Agreement) between or by and among Old Ceridian, New Ceridian, Arbitron
and/or any Subsidiaries of Old Ceridian, New Ceridian or Arbitron shall
terminate and have no further force and effect.
8.2 SURVIVAL OF OBLIGATIONS. Notwithstanding anything in this
Agreement or the Distribution Agreement to the contrary, this Agreement shall
survive the consummation of the transactions contemplated by the Distribution
Agreement and shall continue throughout the period ending on the later of (i)
one year after the expiration of all applicable statutes of limitation
(including extensions), and (ii) the final determination of (and the
expiration of the time to appeal) any Proceeding relating to Taxes or Tax
matters covered by (or any claim under) this Agreement.
8.3 SEVERABILITY. In case one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable, the
enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby.
8.4 MODIFICATION OF AGREEMENT. No modification, amendment or
waiver of any provision of this Agreement shall be effective unless the same
shall be in writing and signed by each of the parties hereto and then such
modification, amendment or waiver shall be effective only in the specific
instance and for the purpose for which given.
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8.5 NOTICES. All notices or other communications required or
permitted under this Agreement shall be made in the manner provided in
Section 8.6 of the Distribution Agreement.
8.6 TITLES; HEADINGS. The titles and headings to Articles and
Sections herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
8.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become a binding agreement when one or more counterparts have been
signed by each party and delivered to the other parties.
8.8 SUCCESSORS AND ASSIGNS. Except to the extent the Distribution
Agreement may be assigned by Arbitron or New Ceridian, this Agreement and the
rights and obligations hereunder may not be assigned or transferred without
the prior written consent of the other parties hereto. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, and no other
person shall have any right, benefit or obligation hereunder.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
Ceridian Corporation
By: _________________________
Title: ______________________
New Ceridian Corporation
By: _________________________
Title: ______________________
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