Exhibit 10.6
TAX INDEMNIFICATION AGREEMENT
TAX INDEMNIFICATION AGREEMENT, dated as of December 10, 2001 (the
"Agreement"), among Technical Consumer Products, Inc., a Delaware corporation
(the "Company"), and the persons listed on the signature page hereto
(individually, a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, the execution and delivery by the Company and the Stockholders
of this Agreement is a condition to the closing of the Public Offering (as
hereinafter defined);
WHEREAS, the Company has been an "S corporation" (as defined in section
1361(a)(1) of the Code (as hereinafter defined)) for federal tax purposes since
October 15, 2001 and the Predecessor (as hereinafter defined) was an S
corporation for federal tax purposes since February 12, 1993.
WHEREAS, the Company and the Stockholders plan to terminate the S
corporation status of the Company prior to the closing of the Public Offering
and, as a result, the Company will be a "C corporation" (as defined in section
1361(a)(2) of the Code) beginning on the Termination Date (as hereinafter
defined); and
WHEREAS, the Company and the Stockholders wish to provide for the
termination of this Agreement such that it has no effect should the Public
Offering not close.
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS. The following terms as used herein have the following
meanings:
"Adjustment Amount" means the net increase in taxable income of one or
more of the Stockholders or the Company based on a Final Determination and that
gives rise to a payment pursuant to Section 3.3 or 3.4 hereof.
"Affected Stockholder" means a Stockholder whose tax returns are
adjusted in a manner which gives rise to an obligation of the Company (whether
directly or as successor to the Predecessor) pursuant to Section 3.3 hereof.
"Blended Rate" means a percentage that equals the sum of the maximum
marginal federal and state individual income tax rates for an individual
residing in Ohio (after giving effect to the full deductibility of state income
taxes for federal income tax purposes) in effect for the year of the adjustment
to a tax return of the Company, the Predecessor or such Stockholder that gives
rise to a correlative adjustment to a tax return of such Stockholder, the
Predecessor or the Company, respectively. For example, if an adjustment results
in an amount due from the
Stockholders hereunder, the year of the Company's return or the Predecessor's
return, as the case may be, that was adjusted shall determine the Blended Rate
to be used in computing the amount due.
"Closing Date" means the date on which the Public Offering closes.
"Code" means the Internal Revenue Code of 1986, as amended.
"C Short Year" means that portion of the Company's year beginning on
the Termination Date until and including the last day of the S Termination Year.
"C Taxable Year" means any taxable year (or portion thereof) of the
Company during which the Company is a C corporation, including the C Short Year.
"Final Determination" means the final resolution of any income tax
liability (including all related interest and penalties) for a taxable period. A
Final Determination shall result from the first to occur of:
(i) the expiration of 30 days after acceptance by the Internal
Revenue Service (the "IRS") of a Waiver of Restrictions on Assessment
and Collection of Deficiency in Tax and Acceptance of Overassessment
(the "Waiver") on Federal Revenue Form 870 or 870-AD (or any successor
comparable form or the expiration of a comparable period with respect
to any comparable agreement or form under the laws of any other
jurisdiction), unless, within such period, the applicable taxpayer
gives notice of that taxpayer's intention to attempt to recover all or
part of any amount paid pursuant to the Waiver by filing a timely claim
for refund;
(ii) a decision, judgment, decree or other order by a court
of competent jurisdiction that is not subject to further judicial
review (by appeal or otherwise) and has become final;
(iii) the execution of a closing agreement under section 7121
of the Code or the acceptance by the IRS or its counsel of an offer in
compromise under section 7122 of the Code or the execution of a
comparable agreement under the laws of any other jurisdiction;
(iv) the expiration of the time for filing a claim for
refund or for instituting suit in respect of a claim for refund
disallowed in whole or part by the IRS or any other relevant taxing
authority;
(v) any other final disposition of the tax liability for
such period by reason of the expiration of the applicable statute of
limitations; or
(vi) any other event that the parties hereto agree is a final
and irrevocable determination of the liability at issue.
"Predecessor" means Technical Consumer Products, Inc., an Ohio
corporation, which was merged with and into the Company on October 15, 2001.
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"Public Offering" means the initial offering of shares of the Company's
Common Stock, $0.001 par value per share, pursuant to the Registration Statement
on Form S-1 originally filed by the Company with the Securities and Exchange
Commission on October 17, 2001.
"S Short Year" means that portion of the S Termination Year beginning
on the first day of such taxable year and ending on the day immediately
preceding the Termination Date.
"S Taxable Year" means any taxable year (or portion thereof) of the
Company or the Predecessor, as applicable, during which the Company, or the
Predecessor, as applicable, was an S corporation, including the S Short Year.
"S Termination Year" means the fiscal year of the Company that includes
the Termination Date.
"Taxing Authority" means the IRS or any comparable state or foreign
taxing authority.
"Termination Date" means the date on which the S corporation status of
the Company will terminate pursuant to section 1362(d) of the Code.
ARTICLE II.
TERMINATION OF S CORPORATION STATUS AND ALLOCATION OF INCOME
2.1 TERMINATION OF S CORPORATION STATUS. The Company and the
Stockholders shall cause the Company to terminate their S corporation status at
least two days prior to the Closing Date.
2.2 ALLOCATION ELECTION. The Company shall elect to allocate the items
described in section 1362(e)(2)(A) of the Code pursuant to section 1362(e)(3) of
the Code under "normal tax accounting rules," and the Stockholders shall consent
to such election and shall provide the Company with the statement of consent
described in section 1.1362-6(b) of the Treasury Regulations.
ARTICLE III.
OBLIGATIONS
3.1 LIABILITY FOR TAXES INCURRED BY STOCKHOLDERS DURING THE S SHORT
YEAR. Each Stockholder shall (a) duly include, in his or its own federal and
state income tax returns, all items of income, gain, loss, deduction or credit
attributable to the S Short Year in a manner consistent with the Form 1120S and
the schedules thereto (and the corresponding state income tax forms and
schedules) to be filed by the Company with respect to such period, (b) file such
returns no later than the due date (including extensions, if any) for filing
such returns, and (c) pay any and all taxes required to be paid for his taxable
year that includes the S Short Year.
3.2 LIABILITY FOR TAXES INCURRED BY THE COMPANY DURING THE S SHORT YEAR
AND THE C SHORT YEAR. The Company shall (a) be responsible for and effect the
filing of all federal and state income tax returns for the Company with respect
to the S Short Year and the C Short Year,
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(b) accurately prepare and timely file such Company returns, and (c) pay any and
all taxes required to be paid by the Company for the C Short Year.
3.3 COMPANY'S INDEMNIFICATION OF STOCKHOLDERS FOR TAX LIABILITIES. In
the event of an adjustment to one or more tax returns of the Company or of the
Predecessor for an S Taxable Year based on a Final Determination that results in
a net increase in taxable income of a Stockholder and a corresponding adjustment
to one or more tax returns of the Company for a C Taxable Year based on a Final
Determination that results in a net decrease in taxable income of the Company,
the Company shall pay to any Affected Stockholder an amount equal to the
Adjustment Amount multiplied by the Blended Rate; provided, however, the total
amount due under this Section 3.3 shall not exceed the amount of refund (or an
offset against tax that would otherwise be due and payable) received by the
Company that is attributable to the relevant adjustment. The Company shall pay
the amount due to the Affected Stockholder within thirty (30) business days
after the receipt of notice from the Affected Stockholder that a payment is due
by such party to the appropriate Taxing Authority.
3.4 STOCKHOLDERS' INDEMNIFICATION OF THE COMPANY FOR TAX LIABILITIES.
(a) ADJUSTMENTS TO THE COMPANY'S TAXABLE INCOME. In the event of an
adjustment of one or more tax returns of the Company for a C Taxable Year based
on a Final Determination which results in a net increase in taxable income of
the Company for a C Taxable Year and a corresponding adjustment to one or more
tax returns of the Company or of the Predecessor for an S Taxable Year based on
a Final Determination which results in a net decrease in taxable income of the
Company or of the Predecessor for the S Taxable Year, each Stockholder,
severally but not jointly, agrees to contribute to the capital of the Company
his pro rata share (based upon the relative amount of Company stock or
Predecessor stock, as the case may be, held by such Stockholder during the
relevant time period) of an amount equal to the Adjustment Amount multiplied by
the Blended Rate; provided, however, the total amount due under this Section
3.4(a) shall not exceed the amount of refund (or an offset against tax that
would otherwise be due and payable) received by each Stockholder that is
attributable to the relevant adjustment.
(b) ADJUSTMENTS ATTRIBUTABLE TO THE COMPANY'S S STATUS. If, based on a
Final Determination, the Company or the Predecessor is deemed to have been a C
corporation for federal, state or local income tax purposes during any period in
which it reported (or intends to report) its taxable income as an S corporation,
each Stockholder, severally but not jointly and subject to the limitations
contained in Section 3.4(c), shall contribute to the capital of the Company his
or its pro rata share (based upon the relative amount of Company stock or
Predecessor stock, as the case may be, held by such Stockholder during the
relevant time period) of an amount equal to the taxes, penalties and interest
incurred by the Company as a result of the Company or the Predecessor being
deemed to have been a C corporation.
(c) LIMIT ON INDEMNIFICATION AMOUNT. Notwithstanding the provisions of
this Section 3.4, all payments required to be made by any Stockholder to the
Company pursuant to Section 3.4(b) shall not exceed the total distributions to
pay taxes made to such Stockholder by the Company and/or the Predecessor, as the
case may be, during the period beginning on the first day of the first open tax
year of the Company and/or the Predecessor, as the case may be, in
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which the Company and/or the Predecessor, as the case may be, is deemed to have
been a C corporation and ending on the Termination Date.
(d) TIME OF INDEMNIFICATION PAYMENT. The Stockholders shall contribute
to the capital of the Company any amounts calculated in accordance with this
Section 3.4 within 30 business days after the first to occur of (i) the receipt
of the refund from the appropriate Taxing Authority attributable to such
adjustment, or (ii) delivery of a notice from the Company that a payment is due
by the Company to the appropriate Taxing Authority.
ARTICLE IV.
CONTESTS/COOPERATION
4.1 CONTESTS. Whenever the Stockholders or the Company become aware of
an issue that they or it believe could result in a Final Determination which
could give rise to a payment or indemnification obligation under Article III,
the Stockholders or the Company (as the case may be) shall promptly give notice
of the issue to the other parties hereto. The Stockholders and their
representatives, at their expense, shall be entitled to participate in all
conferences and meetings with or proceedings before the IRS or any other Taxing
Authority with respect to the issue. The parties shall consult and cooperate
with each other in the negotiation and settlement or litigation of any
adjustment that may give rise to any payment or indemnification obligation under
Article III. All decisions with respect to such negotiation and settlement or
litigation shall be made by the parties after full, good faith consultation or
pursuant to the dispute resolution provisions of Section 4.2.
4.2 DISPUTE RESOLUTION.
(a) If the parties hereto are, after negotiation in good faith, unable
to agree upon the appropriate application of the provisions of this Agreement,
the controversy shall be settled by a "Big 5" (or equivalent) accounting firm,
other than the Company's independent public accountants, chosen by the Company
and a majority of the Stockholders (the "Accounting Firm"). The decision of the
Accounting Firm with respect thereto shall be final, and the Company or the
Stockholders shall immediately pay any amounts due under this Agreement pursuant
to such decision. The applicable expenses of the Accounting Firm shall be borne
one-half by the Company and one-half by the Stockholders unless the Accounting
Firm specifies otherwise.
(b) In the event that any of the Stockholders or the Company receives
notice, whether orally or in writing, of any federal, state, local or foreign
tax examination, claim, settlement, proposed adjustment or related matter that
may affect in any way the liability of a Stockholder under this Agreement, he or
it shall within ten days notify the other parties hereto in writing thereof;
PROVIDED, HOWEVER, that any failure to give such notice shall not reduce a
party's right to indemnification under this Agreement except to the extent of
actual damage incurred by the other parties as a result of such failure. The
party or parties who would be required to indemnify ( the "Indemnifying Party")
the other party or parties (the "Indemnified Party") shall be entitled in their
reasonable discretion and at their sole expense to handle, control and
compromise or settle the defense of any matter that may give rise to a liability
under this
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Agreement; PROVIDED, HOWEVER, that such Indemnifying Party from time to time
provides assurances reasonably satisfactory to the Indemnified Party that (i)
the Indemnifying Party is financially capable of pursuing such defense to its
conclusion, and (ii) such defense is actually being pursued in a reasonable
manner.
4.3 COOPERATION. The parties shall make available to each other, as
reasonably requested, and to any Taxing Authority all information, records or
documents relating to any liability for taxes covered by this Agreement and
shall preserve such information, records and documents until the expiration of
any applicable statute of limitations or extensions thereof. The party
requesting such information shall reimburse the other party for all reasonable
out-of-pocket costs incurred in producing such information.
4.4 COSTS. Except to the extent otherwise provided herein, each party
shall bear his own costs in connection with this Agreement.
ARTICLE V.
MISCELLANEOUS
5.1 COUNTERPARTS AND FACSIMILE. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original, but all
of which counterparts collectively shall constitute a single instrument
representing the agreement among the parties hereto. Transmission of facsimile
copies of an executed counterpart of a signature page of this Agreement will
have the same effect as delivery of the manually executed counterpart of this
Agreement.
5.2 CONSTRUCTION OF TERMS. Nothing herein expressed or implied is
intended, or shall be construed, to confer upon or give any person, firm or
corporation, other than the parties hereto and their respective successors and
permitted assigns, any rights or remedies under or by reason of this Agreement.
5.3 GOVERNING LAW. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with the
substantive laws of the State of Ohio without regard to any choice of law rules.
5.4 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified
or supplemented only by a writing executed by all the parties hereto.
5.5 ASSIGNMENT. Except by operation of law or in connection with the
sale of all or substantially all the assets of a party, this Agreement shall not
be assignable, in whole or in part, directly or indirectly, by the Stockholders
without the written consent of the Company or by the Company without the written
consent of the Stockholders. Any attempt to assign any rights or obligations
arising under this Agreement without such consent shall be void. The provisions
of this Agreement shall be binding upon and inure to the benefit of, and be
enforceable by, the parties hereto and their respective successors and permitted
assigns.
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5.6 INTERPRETATION. The title, article and section headings contained
in this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties, and shall not in any way affect the meaning or
interpretation of this Agreement.
5.7 SEVERABILITY. In the event that any one or more of the provisions
of this Agreement shall be held to be illegal, invalid or unenforceable in any
respect, the same shall not in any respect affect the validity, legality or
enforceability of the remainder of this Agreement, and the parties shall use
their best efforts to replace such illegal, invalid or unenforceable provision
with an enforceable provision approximating, to the extent possible, the
original intent of the parties.
5.8 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the parties hereto in respect to the subject matter contained
herein. There are no representations, promises, warranties, covenants or
undertakings other than those expressly set forth herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
5.9 FURTHER ASSURANCES. Subject to the provisions of this Agreement,
the parties shall acknowledge such other instruments and documents and take all
other actions that may be reasonably required in order to effectuate the
purposes of this Agreement.
5.10 WAIVERS, ETC. No failure or delay on the part of any party in
exercising any power or right under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power or
any abandonment or discontinuance of steps to enforce such right or power
preclude any other or further exercise thereof or the exercise of any other
right or power. No waiver of any provision of this Agreement nor consent to any
departure by the parties therefrom shall in any event be effective unless it
shall be in writing, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which it was given.
5.11 SET-OFF. All payments to be made by any Stockholder under this
Agreement shall be made without set-off, counterclaim or withholding, all of
which are expressly waived.
5.12 CHANGE OF LAW. If, due to any change in applicable law or
regulations or the interpretation thereof by any court or other governing body
having jurisdiction subsequent to the date of this Agreement, performance of any
provision of this Agreement shall be impracticable or impossible, the parties
shall use their best efforts to find an alternative means to achieve the same or
substantially the same results as are contemplated by such provision.
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5.13 NOTICES. All notices under this Agreement shall be validly given
if in writing and delivered personally or sent by registered mail, postage
prepaid to the Stockholders at the address set forth below their respective
names on the signature page to this Agreement or
to the Company at:
Technical Consumer Products, Inc.
000 Xxxx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Chief Financial Officer
or at such other address as any party may, from time to time, designate in a
written notice given in a like manner. Notice given by mail shall be deemed
delivered five calendar days after the date mailed.
5.14 TERMINATION OF AGREEMENT. This Agreement shall terminate and be
void, as if it never had been executed, if the Closing Date does not occur on or
before December 31, 2003.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TECHNICAL CONSUMER PRODUCTS, INC.
By: /s/ Xxxxx Xxx
------------------------------------------
Name: Xxxxx Xxx
Title: President and Chief Executive
Officer
STOCKHOLDERS
/s/ Xxxxx Xxx
----------------------------------------------
Xxxxx Xxx, in his individual capacity
Address: c/o Technical Consumer Products, Inc.
000 Xxxx Xxxxx
Xxxxxx, Xxxx 00000
/s/ Xxxxxxx Xxxx
----------------------------------------------
Xxxxxxx Xxxx, in his individual capacity
Address: c/o Technical Consumer Products, Inc.
000 Xxxx Xxxxx
Xxxxxx, Xxxx 00000
/s/ Xxxxx Xxxxxxx
----------------------------------------------
Xxxxx Xxxxxxx, in his individual capacity
Address: c/o Technical Consumer Products, Inc.
000 Xxxx Xxxxx
Xxxxxx, Xxxx 00000
/s/ Xxxxxxx Xxxxx
----------------------------------------------
Xxxxxxx Xxxxx, in his individual capacity
Address: 000 Xxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
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