Exhibit 10.5
FORM OF TAX INDEMNITY AGREEMENT
TAX INDEMNITY AGREEMENT, dated as of ______, 2004 (this "Tax Agreement"),
among Calamos Family Partners, Inc., a Delaware corporation (f/k/a Calamos
Holdings Inc., "CFP"), Calamos Asset Management, Inc., a Delaware corporation
("CAM"), and Calamos Holdings LLC, a Delaware limited liability company
("CHLLC").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, on or prior to the date hereof, CFP has undertaken the
Contribution of all of its assets and liabilities, including all of its
ownership interests in the CFP Subsidiaries, to CHLLC, and the Conversion of
each of the CFP Subsidiaries into a limited liability company in accordance with
Delaware law;
WHEREAS, CAM intends to consummate a Public Offering and use the net
proceeds (after the payment of expenses) to acquire membership interests in
CHLLC; and
WHEREAS, CFP, CHLLC and CAM desire to address certain matters between them
in respect of the allocation of taxable income and liability for Income Taxes
for taxable periods (and portions of taxable periods) prior to the Public
Offering;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, CFP, CHLLC and CAM agree as
follows:
ARTICLE I
DEFINITIONS
1.1. DEFINITIONS.
The following terms are used in this Tax Agreement:
"Closing Date" means the date on which the Public Offering closes.
"Code" means the Internal Revenue Code of 1986, as amended.
"Contribution" means the contribution by CFP of all of its assets,
including all of CFP's ownership interests in the CFP Subsidiaries, to CHLLC,
and the assumption by CHLLC of all of the liabilities of CFP, pursuant to the
Contribution Agreement, dated as of _______, 2004, between CFP and CHLLC.
"Conversion" means the merger of Calamos Partners, Inc., an Illinois
corporation, with and into Calamos Partners LLC, a Delaware limited liability
company; the merger of Calamos Asset Management, Inc., an Illinois corporation,
with and into Calamos
Advisors LLC, a Delaware limited liability company; the merger of Calamos
Financial Services, Inc., an Illinois corporation with and into Calamos
Financial Services LLC, a Delaware limited liability company; and the merger of
Calamos Property Management, Inc., an Illinois corporation, with and into
Calamos Property Management LLC, a Delaware limited liability company.
"Final Determination" means, with respect to any Income Tax liability, (i)
a "determination" within the meaning of Section 1313(a) of the Code and the
Treasury regulations thereunder, (ii) a comparable determination of an Income
Tax liability under applicable state, local or non-U.S. Tax law or (iii) any
other event that the parties hereto agree is a final resolution of the Income
Tax liability at issue.
"Income Tax" or "Income Taxes" means any and all Taxes based upon or
measured by overall net or gross income or overall gross receipts, and franchise
Taxes imposed in lieu thereof.
"Post-Closing Period" means any taxable period (or portion of a taxable
period) beginning after the Closing Date.
"Public Offering" means the initial offering of shares of Class A Common
Stock, $0.01 par value per share, of CAM pursuant to the Registration Statement
on Form S-1 (Registration No. 333-117847) originally filed by CAM with the
Securities and Exchange Commission on August 2, 2004, as amended.
"Pre-Closing Period" means any taxable period (or portion of a taxable
period) ending on or before the Closing Date.
"CFP Subsidiaries" means, prior to the Conversion, Calamos Partners, Inc.,
an Illinois corporation, Calamos Asset Management, Inc., an Illinois
corporation, Calamos Financial Services, Inc., an Illinois corporation and
Calamos Property Management, Inc., an Illinois corporation, and after the
Conversion, Calamos Partners LLC, a Delaware limited liability company, Calamos
Advisors LLC, a Delaware limited liability company, Calamos Financial Services
LLC, a Delaware limited liability company and Calamos Property Management LLC, a
Delaware limited liability company.
"Tax" or "Taxes" means any and all taxes and similar charges (together
with any and all interest, penalties, additions to tax and additional amounts
imposed with respect thereto) imposed by any Taxing Authority.
"Taxing Authority" means the Internal Revenue Service or any comparable
state, local or foreign taxing authority.
"Tax Benefit" means any amount by which the Income Tax liability of CHLLC
or CAM or any of their respective subsidiaries in any taxable period is actually
reduced by a loss, deduction or credit arising as a result of a claim,
assessment or adjustment with
respect to which a payment was made by CFP pursuant to Section 3.1 of this Tax
Agreement, after taking into account all other available losses, deductions and
credits.
ARTICLE II
REPRESENTATIONS AND COVENANTS
2.1. TAX STATUS OF CFP AND SUBSIDIARIES.
CFP represents and warrants that at all times since its formation, it has
been an "S corporation" within the meaning of section 1361(a)(1) of the Code,
and each of the Subsidiaries was an "S corporation" within the meaning of
section 1361(a)(1) of the Code at all times from its formation until December
31, 2001 and from that date until the Conversion, has been a "qualified
subchapter S corporation" within the meaning of section 1361(b)(3) of the Code.
2.2. TAX STATUS OF CHLLC.
CFP, CHLLC and CAM acknowledge and agree that, for federal income tax
purposes (and, where permitted, state and local income tax purposes), CHLLC will
be treated as a "disregarded entity" prior to the Closing Date, and as a
partnership on and after the Closing Date. None of CFP, CHLLC or CAM shall make
any election or take any other action or position that is inconsistent with such
treatment of CHLLC.
2.3. CONVERSION.
Each of the mergers that is part of the Conversion will be effective
prior to the Closing Date.
ARTICLE III
OBLIGATIONS
3.1. LIABILITY FOR INCOME TAXES.
CFP shall indemnify and hold CHLLC and CAM harmless against any and all
Income Taxes imposed on or attributable to CFP or any of CFP's current or former
Subsidiaries for any Pre-Closing Period, including any Income Taxes resulting
from the Conversion and the Contribution; provided, however, that CFP shall have
no liability hereunder for any Income Taxes arising as a result of the filing of
any election or amended Tax return, or the taking of other action outside the
ordinary course, by CHLLC or CAM (or any of their respective subsidiaries) after
the Closing Date without the prior written consent of CFP (which will not be
unreasonably withheld). Any amount owing by CFP under this Section 3.1 shall be
paid by CFP to CHLLC or CAM, as applicable, within 60 business days after
written notice of a Final Determination of such Income Tax is received by CFP.
3.2. REFUNDS AND SIMILAR CREDITS.
CFP shall be entitled to any refunds, credits or similar benefits relating
to Income Taxes of CFP or any of the Subsidiaries for a Pre-Closing Period, and
each of CHLLC and CAM agrees to promptly pay (or cause to be paid) to CFP the
amount of any such refund, credit or similar benefit if and when realized by
CHLLC or CAM, as applicable, or any of their respective subsidiaries.
3.3 TAX TREATMENT OF INDEMNITY PAYMENTS/TAX BENEFITS.
CFP, CHLLC and CAM agree to treat amounts payable by CFP under Section 3.1
of this Tax Agreement as contributions to capital if to CHLLC, or as adjustments
to purchase price if to CAM, for all Tax purposes, except to the extent that the
laws of a relevant jurisdiction provide otherwise, in which case, payment by CFP
shall be made on an after-Tax basis. Notwithstanding anything to the contrary
herein, amounts payable by CFP under Section 3.1 of this Tax Agreement shall be
made net of any Tax Benefit. Moreover, if CFP makes an indemnity payment
pursuant to Section 3.1 of this Tax Agreement, and a related Tax Benefit is
obtained in a subsequent taxable period, then promptly after realization of such
Tax Benefit, CHLLC or CAM, as applicable, promptly shall pay (or cause to be
paid) to CFP an amount equal to such Tax Benefit.
ARTICLE IV
CONTESTS/COOPERATION/COSTS
4.1. CONTESTS.
Whenever CHLLC or CAM becomes aware of an audit, examination,
administrative or judicial proceeding, or actual or proposed assessment or claim
that could give rise to an indemnification obligation of CFP under Article III
of this Tax Agreement, CHLLC or CAM (as the case may be) shall promptly give
written notice to CFP (which notice shall include copies of written
correspondence or other documents received from, or delivered to, the Taxing
Authority); provided that the failure to give such notice shall not affect CFP's
indemnification obligations under Article III of this Tax Agreement except to
the extent that CFP is materially prejudiced by such failure. CFP shall have the
sole right to control the conduct of any Tax audit, examination or
administrative or judicial proceeding relating to an issue that, if determined
adversely to the taxpayer, would be grounds for indemnification by CFP under
Article III of this Tax Agreement (a "Contest"). In the event that the Contest
involves CHLLC or CAM or their affiliates, then CHLLC or CAM (as applicable) may
participate in the Contest, but shall give, or cause to be given, to CFP all
necessary powers of attorney and other authorizations to allow CFP to exercise
its control of the Contest hereunder. Notwithstanding anything to the contrary
herein, none of CFP, CHLLC or CAM shall settle or compromise any Contest that
could materially adversely affect another party to this Tax Agreement without
the prior written consent of such other party (which consent shall not be
unreasonably withheld).
4.2. COOPERATION.
CFP, CHLLC and CAM shall provide each other such cooperation and
information as may be reasonably requested in connection with the preparation
and filing of Tax returns and reports and claims for refund, the conduct,
dispute, negotiation and settlement of Tax audits, examinations and other
proceedings and any other matters
relating to Taxes for Pre-Closing Periods, including (i) by maintaining and
making available to each other copies of Tax returns, reports, records and
supporting documents, and relevant correspondence with Taxing Authorities and
(ii) by keeping each other reasonably informed of any Tax audit, examination or
other proceeding in respect of which another party to this Tax Agreement or any
of its affiliates may have a liability.
4.3. COSTS.
Except to the extent otherwise provided herein, each of CFP, CHLLC and CAM
shall bear its own costs in connection with this Tax Agreement.
ARTICLE V
MISCELLANEOUS
5.1. COUNTERPARTS AND FACSIMILE.
This Tax 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 Tax Agreement among the
parties hereto. Transmission of facsimile copies of an executed counterpart of a
signature page of this Tax Agreement will have the same effect as delivery of
the manually executed counterpart of this Tax 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 Tax Agreement.
5.3 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
(b) Any claim, action, suit or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be heard and determined
in any Illinois state or federal court sitting in Chicago, Illinois, Xxxx
County, and each of the parties hereto hereby consents to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts therefrom
in any such claim, actions, suit or proceeding) and irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any such claim, action, suit or proceeding in
any such court or that any such claim, action, suit or proceeding which is
brought in any such court has been brought in an inconvenient forum.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF
ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
THEREOF.
5.4. AMENDMENT AND MODIFICATION.
This Tax 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 Tax Agreement shall not be
assignable, in whole or in part, directly or indirectly without the written
consent of the other parties hereto. Any attempt to assign any rights or
obligations arising under this Tax Agreement without such consent shall be void.
The provisions of this Tax 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.
5.6. INTERPRETATION.
The title, article and section headings contained in this Tax Agreement
are solely for the purpose of reference, are not part of the Tax Agreement of
the parties, and shall not in any way affect the meaning or interpretation of
this Tax Agreement.
5.7. SEVERABILITY.
In the event that any one or more of the provisions of this Tax 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 Tax 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 Tax 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 Tax Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
5.10. FURTHER ASSURANCES.
Each party hereto covenants and agrees to take any and all such further
actions and to execute, acknowledge and deliver such further instruments,
documents and agreements as the other parties hereto may reasonably request in
order to effectuate the purposes of this Tax Agreement.
5.11. 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 Tax Agreement, performance of any provision of
this Tax 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.
5.12. NOTICES.
All notices under this Tax Agreement shall be validly given if in writing
and delivered personally or sent by registered mail, postage prepaid at the
respective addresses set forth below:
if to CFP:
[ ]
if to CHLLC
[ ]
if to CAM:
[ ]
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.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first written above.
CALAMOS FAMILY PARTNERS, INC.
By:
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Name:
Title:
CALAMOS HOLDINGS LLC
By:
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Name:
Title:
CALAMOS ASSET MANAGEMENT, INC.
By:
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Name:
Title:
