Exhibit 10.12.1
Amendment No. 1
to
Tax Separation Agreement
This Amendment No. 1 to Tax Separation Agreement is entered into by and
between Etinuum, Inc. (f/k/a Intek Information, Inc.) ("Etinuum"), a Delaware
corporation, and Spider Technologies, Inc. ("Spider"), a Delaware corporation,
and amends the Tax Separation Agreement dated as of October 1, 1999 (the
"Agreement").
RECITALS
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The spin off of the capital stock of Spider was a taxable transaction to
Etinuum and the amount of the tax was computed on a gross fair market value of
$8,100,000. The parties agree that if it is subsequently determined that the
gross fair market value was greater than $8,100,000 that it is appropriate for
Spider, not Etinuum, to bear the economic effect of such excess tax liability as
Spider is the beneficiary of such greater value.
AGREEMENT
---------
For good and valuable consideration, including the cancellation of $10,000
of current receivables owed by Spider to Etinuum, and the avoidance of disputes
regarding Etinuum and Spider on the subject matter hereof, the parties agree as
follows:
1. A new Section 19 is added to the Tax Separation Agreement reading as
follows:
19. Spin Off Value.
If (i) the gross value of the capital stock of Spider distributed
pursuant to the Distribution is finally determined by a court or taxing
authority to have a value for Tax purposes as of the Distribution of
more than $8,100,000, or (ii) after due consultation with Spider and
providing Spider the opportunity to contest the valuation, Intek
settles or agrees with a taxing authority that such capital stock had a
value for Tax purposes of more than $8,100,000, each of (i) and (ii),
an "Adverse Determination," then Spider shall indemnify the Intek Group
for any incremental Taxes incurred by the Intek Group, which indemnity
shall be paid 5 days prior to the date on which the Intek Group is
required to make a payment to the appropriate taxing authority with
respect to the Adverse Determination; provided, however, if because of
other tax attributes such as credits, offsets, or loss carryforwards,
the Intek Group is not required to make an actual payment to a taxing
authority with respect to the Adverse Determination, such indemnity
shall be paid 5 days prior to the first date on which the Intek Group
is required to make a payment to the appropriate taxing authority with
respect to another item of income or gain, which payment would not have
been required but for the use of such tax attributes in connection with
the Adverse Determination. If Spider distributes any of its assets, it
will make due provision to assure sufficient assets remain available to
satisfy its potential obligations
hereunder.
SPIDER TECHNOLOGIES, INC.
By: ________________________________
Title: _____________________________
ETINUUM, INC.
By: ________________________________
Title: _____________________________
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