TAX ALLOCATION AGREEMENT
Exhibit
10.44
THIS
AGREEMENT is entered into as May 7, 2009 by and among Ener1, Inc., a Florida
corporation (“ENER1”) and EnerDel, Inc., EnerFuel, Inc. NanoEner, Inc., and
Ener1 Battery, Inc. each a Florida corporation, except EnerDel, Inc., a Delaware
corporation (each an “Ener1 Sub” and in the aggregate the “Ener1
Subs”).
WITNESSETH:
WHEREAS,
ENER1 is the common parent corporation of an affiliated group of corporations
(the “ENER1 Affiliated Group”) within the meaning of section 1504(a) of the
Internal Revenue Code of 1986, as amended (the “Code”), and each Ener1 Sub is a
corporation wholly owned by ENER1 and therefore a member of the ENER1 Affiliated
Group; and
WHEREAS,
ENER1 and each Ener1 Sub deem it appropriate to define the method by which the
federal income tax, including for all purposes of this Agreement, the
alternative minimum tax, and certain state and local tax liabilities of the
ENER1 Affiliated Group shall be allocated between the parties and the manner in
which such allocated liability shall be paid.
NOW,
THEREFORE, in consideration of the mutual premises and covenants hereinafter set
forth, the parties hereto agree as follows:
1.
Definitions. The following terms as used in this Agreement shall have the
meanings set forth below:
(a)
“Additional Amount”
shall mean the amount determined under Section 3 hereof.
(b)
“Consolidated Return”
shall mean a consolidated federal income tax return filed pursuant to section
1501 of the Code.
(c) “Consolidated Tax Liability” shall mean
the consolidated federal income tax liability, including for all purposes of
this Agreement, alternative minimum tax liability, of the ENER1 Affiliated Group
for any taxable year for which the ENER1 Affiliated Group files a Consolidated
Return.
(d)
“IRS” shall mean the
Internal Revenue Service.
(e)
“Member” shall mean each
includible member of the ENER1 Affiliated Group.
(f)
“ENER1 Affiliated Group”
shall mean the affiliated group of corporations within the meaning of section
1504(a) of the Code of which ENER1 is the common parent.
(g)
“Regulations” shall mean
the Treasury regulations as in effect from time to time.
(h)
“Separate Return Tax
Liability” shall mean the federal income tax liability, including for all
purposes of this Agreement, alternative minimum tax liability, of a Member
computed as if it had filed a separate federal income tax return for the
applicable taxable year with the modifications set forth in section
1.1552-1(a)(2)(ii) of the Regulations.
(i)
“Separate Tax Liability”
shall mean the amount owed by a Member under Section 2(a)
hereof.
(j)
“Tax Sharing Receivable”
shall mean the amount owned to a Member pursuant to Section 2(a)
hereof.
2.
Separate Tax
Liability.
(a)
If a Consolidated Return
is filed by the ENER1 Affiliated Group for any taxable year, the Separate Tax
Liability of each Member for such taxable year shall, if a positive number, be
the sum of (i) the amount determined for such Member pursuant to paragraph (b)
hereof, plus or minus, as the case may be, (ii) any increase or reduction in the
Member's tentative Separate Tax Liability required by paragraph (c) hereof. To
the extent an allocation to a Member under clause (ii) of paragraph (c) hereof
reduces a Member's tentative Separate Tax Liability to an amount less than zero,
such negative amount shall be referred to herein as a “Tax Sharing
Receivable.”
(b)
Each Member's tentative
Separate Tax Liability shall be an amount equal to that portion of the
Consolidated Tax Liability for such taxable year that the Member's Separate
Return Tax Liability for such taxable year bears to the sum of the Separate
Return Tax Liabilities of all Members for such taxable year; provided, however,
that such amount shall not exceed the Consolidated Tax Liability for such
taxable year.
(c)
Adjustments for Additional
Amount. If an Additional Amount is determined with respect to a Member for a
Consolidated Return taxable year, then (i) the tentative Separate Tax Liability
of that Member, as determined pursuant to paragraph (b), shall be increased by
such Additional Amount; and (ii) the Separate Tax Liability of each of those
Members whose tax attributes are absorbed shall be reduced by a pro rata portion
of the Additional Amount allocated to such Member, which allocation shall be
made in a manner that reasonably reflects the absorption of the tax attributes.
This paragraph (c) and Section 3 hereof are intended to allocate Additional
Amounts of Separate Return Tax Liability in accordance with the percentage
method of Reg. (S)1.1502-33(d)(3) (using 100% for each Member) and shall be
interpreted to comply in all material respects with that
method.
3.
Additional Amount. An
“Additional Amount” exists with respect to a Member if, for any Consolidated
Return taxable year, that Member's Separate Return Tax Liability exceeds the
tentative Separate Tax Liability of that Member determined pursuant to Section
2(b).
4.
Payments. For each taxable
year with respect to which ENER1 files, or it is reasonably anticipated that
ENER1 will file, a Consolidated Return which includes Ener1, payment of the
Separate Tax Liability or Tax Sharing Receivable with respect to such taxable
year shall be made as follows:
(a)
On or before the 15th day
of the fourth month of such taxable year, ENER1 shall estimate the Separate Tax
Liability or Tax Sharing Receivable of each Member for such taxable
year.
(b)
Each Ener1 Sub shall pay
to ENER1 or ENER1 shall pay to each Ener1 sub, as the case may be, on or before
each of the due dates for ENER1 to make payment of estimates of its federal
income taxes for such taxable year one-fourth of the amount estimated pursuant
to paragraph (a) above (the “Estimated Amount”). If, after paying any such
installment of the Estimated Amount, ENER1 and Ener1 Subs make a new estimate,
the amount of each remaining installment (if any) shall be the amount which
would have been payable if the new estimate had been made when the first
estimate for the taxable year was made, increased or decreased as applicable, by
the amount computed by dividing: (i) the difference between (A) the amount of
the Estimated Amount required to be paid before the date on which the new
estimate is made, and (B) the amount of the Estimated Amount which would have
been required to be paid before such date if the new estimated had been made
when the first estimate was made, by (ii) the number of installments remaining
to be paid on or after the date on which the new estimate is
made.
(c)
If, after the end of each
such taxable year with respect to which ENER1 filed, or reasonably anticipates
that it will file, a Consolidated Return which includes an Ener1 Sub, it is
determined that the actual Separate Tax Liability for such taxable period
exceeds the aggregate amount paid pursuant to the subparagraph (b) above with
respect to such taxable period, then such excess shall be paid on or before the
later of (i) the 15th day of the third month after the end of such taxable
period, and (ii) the date on which such excess is finally determined, which
shall be not later than sixty (60) days after the Consolidated Return for such
taxable period is filed.
(d)
If, after the end of each
such taxable year with respect to which ENER1 filed, or reasonably anticipates
that it will file, a Consolidated Return which includes Ener1, it is determined
that the amount paid pursuant to subparagraph (b) above with respect to such
taxable period exceeds the actual Separate Tax Liability or Tax Sharing
Receivable for such taxable period, then such excess shall be paid on or before
the later of (i) the 15th day of the third month after the end of such taxable
period and (ii) the date on which such excess is finally determined, which shall
be not later than sixty (60) after the Consolidated Return for such taxable
period is filed.
5.
Carrybacks. The provisions
of this Section 5 shall be interpreted in a manner that does not result in the
duplication of any computations required by any other provision of this
Agreement or in the duplication of any tax sharing payment required to be made
pursuant to any other provision of this Agreement.
(a)
If the ENER1 Affiliated
Group has a consolidated unused investment credit, a consolidated unused foreign
tax credit, a consolidated excess charitable contribution, a consolidated net
capital loss or a consolidated net operating loss, as such terms are defined in
the Regulations (a “Consolidated Excess Amount”) for any taxable year, the
portion of such Consolidated Excess Amount which is attributable to a Member
(the “Separate Excess Amount”) shall be computed in accordance with the
Consolidated Return Regulations.
(b)
If such Consolidated
Excess Amount is carried back to a prior taxable year of the ENER1 Affiliated
Group during which an Ener1 Sub was a Member or was not in existence, then the
amounts due under this Agreement for such prior taxable year shall be
redetermined by taking into account such Consolidated Excess Amount and any
Separate Excess Amount allocable to such taxable year.
(c)
Payment of any amount due
under this Section 5 shall be made on the date that a credit or refund is
allowed with respect to the taxable year to which such payment related and shall
include any interest attributable thereto under section 6611 of the
Code.
6.
Subsequent Adjustments. If any adjustments (other than adjustments made pursuant
to Section 5 hereof) are made to the income, gains, losses, deductions or
credits of the ENER1 Affiliated Group for a taxable year during which an Ener1
Sub is a Member, whether by reason of the filing of an amended return or a claim
for refund which respect to such taxable year or an audit with respect to such
taxable year by the IRS, the amounts due under this Agreement for such taxable
year shall be redetermined by taking into account such adjustments. If, as a
result of such redetermination, any amounts due under this Agreement shall
differ from the amounts previously paid, then payment of such difference shall
be made (a) in the case of an adjustment resulting in a credit or refund, on the
date on which such credit or refund is allowed with respect to such adjustment,
or (b) in the case of an adjustment resulting in the assertion of a deficiency,
on the date on which such deficiency is paid. Any amounts due under this Section
6 shall include any interest attributable thereto under section 6601 or 6611 of
the Code, as the case may be, and any penalties or additional amounts which may
be imposed.
7.
Foreign Tax and State and
Local Tax
(a)
Each Ener1 Sub agrees, on
the request of ENER1, to join with ENER1, or any direct or indirect subsidiary
of ENER1, (i) in any combined or consolidated foreign tax return (“Foreign
Combined Return”) for any taxable year for which ENER1 or any such direct or
indirect subsidiary of ENER1 files a Foreign Combined Return that may include
Ener1, and (ii) in any combined or consolidated state or local income or
franchise tax return (“State/Local Combined Return”) for any taxable year for
which ENER1 or any such direct or indirect subsidiary of ENER1 files a
State/Local Combined Return that may include Ener1.
(b)
If, at any time from and
after the date of this Agreement, an Ener1 Sub is included in any Foreign
Combined Return or State/Local Combined Return that includes ENER1 or any direct
or indirect subsidiary of ENER1, this Agreement shall be applied in a like
manner to all matters relating to such foreign taxes or state or local income or
franchise taxes.
8.
Determinations. All
determinations required hereunder shall be made by the independent public
accountants regularly employed by the ENER1 Affiliated Group at the time that
such determination is required to be made or by such other independent tax
advisor as may be selected by ENER1, in the exercise of its absolute discretion.
Such determinations shall be binding and conclusive upon the parties for
purposes hereof.
9.
Procedural Matters. ENER1
shall prepare and file the Consolidated Return and other returns, documents or
statements required to be filed with the IRS with respect to the determination
of federal income tax liability of the ENER1 Affiliated Group. In its sole
discretion, ENER1 shall have the right with respect to any Consolidated Returns
which it has filed or will file, (i) to determine the manner in which such
returns, documents or statement shall be prepared and filed, including, without
limitation, the manner in which any item of income, gain, loss, deduction or
credit shall be reported, the elections that will be made by any Member, (ii) to
contest, compromise or settle any adjustment or deficiency proposed, asserted or
assessed as a result of any audit or such returns by the IRS, (iii) to file,
prosecute, compromise or settle any claim for refund and (iv) to determine
whether any refunds, to which the ENER1 Affiliate Group may be entitled, shall
be paid by way of refund or credited against the tax liability of the ENER1
Affiliated Group. Each Ener1 Sub hereby irrevocably appoints ENER1 as its agent
and attorney-in-fact to take such actions (including the execution of documents)
as ENER1 may deem appropriate to effect the foregoing.
10.
Earnings and Profits
Determinations. For purposes of determining the manner in which taxes are shared
in calculating each Member's earnings and profits, ENER1 shall be entitled to
use any of the methods permitted by section 1.1502-33(d) of the Regulations that
ENER1, in the exercise of its absolute discretion, deems necessary or
appropriate.
11.
Miscellaneous
Provisions.
(a)
This Agreement contains
the entire understanding of the parties hereto with respect to the subject
matter contained herein. No alteration, amendment or modification of any of the
terms of this Agreement shall be valid unless made by an instrument signed in
writing by an authorized officer of each party hereto.
(b)
This Agreement has been
made in and shall be construed and enforced in accordance with the laws of the
State of Florida.
(c)
This Agreement shall be
binding upon and inure to the benefit of each party hereto and their respective
successors and assigns.
(d)
This Agreement may be
executed simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
(e)
All notices and other
communications hereunder shall be deemed to have been duly given if delivered by
hand or mailed certified or registered mail, postage
prepaid:
If to
ENER1:
Ener1,
Inc.
0000
Xxxxxxxx Xxxxx 00X
Xxx Xxxx,
XX 00000
Attn:
Xxxxxxx Xxxxxxxxxxxx, CEO
Email:
xxxxxxxxxxxxx@xxxx0.xxx
Fax:
000.000.0000
If to
EnerDel, Inc., EnerFuel, Inc. NanoEner, Inc., Ener1 Battery, Inc.:
0000
Xxxxxxxx Xxxxx 00X
Xxx Xxxx,
XX 00000
Attn:
Xxxxxx Xxxxxxx, CFO
Email:
Xxxxxxxx@xxxx0.xxx
Fax:
000.000.0000
(f)
The headings of the paragraph of
this Agreement are inserted for convenience only and shall not constitute a part
hereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their authorized representative, all on the date and year first
above written.
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ENER1,
INC.
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By:
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Name:
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Title:
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ENERDEL,
INC.,
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By:
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Name:
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Title:
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ENERFUEL,
INC.
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By:
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Name:
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Title:
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NANOENER,
INC.,
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By:
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Name:
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Title:
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ENER1
BATTERY, INC.
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By:
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Name:
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Title:
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