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EXHIBIT 10.5
TAX MATTERS AGREEMENT
TAX MATTERS AGREEMENT dated as of November 29, 1996 (the "Agreement")
among JHFSC Acquisition Corp., a Delaware corporation ("Newco") and Xxxx Xxxxxxx
Subsidiaries, Inc., a Delaware corporation ("Xxxxxxx").
WITNESSETH
WHEREAS, Xxxxxxx owns all of the issued and outstanding shares of
common stock, no par value of Xxxx Xxxxxxx Freedom Securities Corporation, a
Massachusetts corporation (the "Company");
WHEREAS, Newco, Xxxxxxx, Xxx and SCP have entered into a Contribution
Agreement dated October 4, 1996;
WHEREAS, Newco and Xxxxxxx desire to memorialize their agreements
regarding certain matters pertaining to Taxes (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and in the Contribution Agreement, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
Section 1. DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings:
"AFFILIATE" shall mean, with respect to any entity, any other
individual, corporation, partnership, joint venture, limited liability
company, association, joint-stock company, trust or unincorporated
organization which directly or indirectly controls, is controlled by or
is under common control with such entity.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMBINED GROUP" shall mean any "affiliated group" (as defined in
Section 1504(a) of the Code) of which Xxxxxxx is a member and any other
group of corporations that, at any time on or before the Closing Date,
files or has filed Tax Returns on a combined, consolidated or unitary
basis with the Company or its Subsidiaries (other than such a group
which includes the Company and/or one or more of its Subsidiaries, but
not other corporations).
"CLOSING DATE" shall have the meaning set forth in the
Contribution Agreement.
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"CURRENT YEAR PAYMENTS" shall have the meaning set forth in
Section 4(a)(1) hereof.
"CURRENT YEAR TAXES" shall have the meaning set forth in Section
4(a)(1) hereof.
"XXXXXXX GROUP MEMBER" shall mean Xxxxxxx and any Affiliates of
Xxxxxxx (other than the Company and its Subsidiaries) and their
respective successors and assigns.
"NEWCO GROUP MEMBER" shall mean Newco and after the Closing Date,
the Company and its Subsidiaries and their respective successors and
assigns.
"REGULATIONS" shall mean Treasury Regulations promulgated under
the Code.
"SHARES" shall mean Shares as that term is defined in the
Contribution Agreement.
"STUB PERIOD" shall have the meaning set forth in Section 4(a)(1)
hereof.
"STUB PERIOD TAXES" shall have the meaning set forth in Section
4(a)(1) hereof.
"SUBSIDIARY" shall mean Subsidiary as that term is defined in the
Contribution Agreement.
"TAX" means any federal, state and local and foreign taxes,
levies, deficiencies or other assessments and other charges of whatever
nature (including income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall profits,
environmental, customs duties, capital stock franchise, profits,
withholding, backup withholding, social security, unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated)
imposed by any taxing authority, as well as any obligation to
contribute to the payment of Taxes determined on a consolidated,
combined or unitary basis with respect to the Company or any affiliate,
including any interest, penalty (civil or criminal), or addition
thereto, whether disputed or not, as well as any expenses incurred in
connection with the determination, settlement or litigation of any
liability.
"TAX PACKAGE" has the meaning set forth in Section 5(c).
"TAX RETURN" means any federal, state, local and foreign return,
declaration, report, claim for refund, amended return, declarations of
estimated Tax or information return or statement relating to Taxes, and
any schedule or attachment thereto, filed or maintained, or required to
be filed or maintained in connection with the calculation,
determination, assessment or collection of any Tax, and including any
amendment thereof, as well as, where permitted or required, combined or
consolidated returns for any group of entities that include the Company
or any Subsidiary.
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Section 2. TAXES. Except as set forth on SCHEDULE 2:
(a) Each of the Company and its Subsidiaries has filed all Tax
Returns that it was required to file on or before the Closing Date. All such Tax
Returns were correct and complete in all material respects. All Taxes owed and
required to have been paid on or before the Closing Date by any of the Company
and its Subsidiaries have been paid (whether or not shown on any Tax Return).
None of the Company and its Subsidiaries currently is the beneficiary of any
extension of time within which to file any Tax Return. No Claim has ever been
made by an authority in a jurisdiction where the Company or any of its
Subsidiaries does not file Tax Returns that it is or may be subject to the
imposition of any Tax by that jurisdiction.
(b) Each of the Company and its Subsidiaries has withheld and
paid all Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, consultant, independent contractor,
creditor, stockholder, or other third party.
(c) Upon request by Newco, Xxxxxxx shall provide all federal,
state and local income Tax Return information in connection with Tax Returns
(and all Tax Returns not including any Xxxxxxx Group Member) filed with respect
to any of the Company and its Subsidiaries for all open Taxable periods,
indicating those Tax Returns that have been audited, and indicating those Tax
Returns that currently are the subject of audit. Xxxxxxx has made available to
Newco correct and complete copies of all requested Company and Subsidiary
federal and state income Tax information included in a consolidated, combined or
unitary filing, all other state Tax Returns, all federal and state examination
reports, and statements of deficiencies assessed against or agreed to by any of
the Company and its Subsidiaries for all Taxable periods for which the statute
of limitations has not expired.
(d) None of the Company and its Subsidiaries has waived any
statute of limitations in respect of Taxes or agreed to any extension of time
with respect to a Tax assessment or deficiency.
(e) None of the Company and its Subsidiaries has filed a
consent under Section 341(f) of the Code concerning collapsible corporations.
None of the Company and its Subsidiaries has made or is obligated to make any
payments or is a party to any agreement that under certain circumstances could
obligate it to make any payments that will not be deductible under Section 280G
of the Code or that are subject to an excise tax under Section 4999 of the Code.
None of the Company and its Subsidiaries has been a United States real property
holding corporation within the meaning of Section 897(c)(2) of the Code during
the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(f) Xxxxxxx is a member of an "affiliated group" of
corporations (as that term is used in Section 1504(a) of the Code and
Regulations promulgated under Section 1502 of the Code) which includes the
Company and its Subsidiaries. Xxxxxxx, the Company and its
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Subsidiaries are eligible to be included in the consolidated federal income Tax
Return of the Combined Group of which Xxxxxxx is a member for the taxable period
including the Closing Date. The Company and each of the Company's Subsidiaries
will be included in such consolidated federal income Tax Return for their
taxable period ending on the Closing Date and except as described in Schedule 2,
were included in such consolidated federal Tax Return for all years for which
the statute of limitations has not run.
(g) Neither the Company nor any Subsidiary is or has ever been
a member of an "affiliated group" of corporations (within the meaning of Section
1504 of the Code), other than a group of which Xxxxxxx is presently a member, or
has any liability for the Taxes of any person (other than any of the Company and
its Subsidiaries), including by reason of Regulations Section 1.1502-6 or
similar provisions of state or local law. Neither the Company nor any Subsidiary
has engaged in any transaction with any member of an "affiliated group" of
corporations of which the Company or any Subsidiary is a member which would
cause deferred income to be triggered into income under Regulations Sections
1.1502-13 or 1.1502-14 or similar provision of state or local law. There are no
excess loss accounts within the meaning of Regulations Section 1.1502-19 or
similar provision of state or local law with respect to the Company or any
Subsidiary. None of the Company or its Subsidiaries is liable for any Taxes
under any guaranty, indemnification, tax sharing or similar agreement other than
the existing tax sharing agreement by and among the Company and its Subsidiaries
and the Combined Group of which Xxxxxxx is a member, and other than any such
agreement solely between the Company and its Subsidiaries.
(h) The Company and its Subsidiaries have not agreed to make,
and are not required to make an adjustment under Section 481 of the Code (or any
comparable provisions of state, local or foreign law) by reason of a change in
accounting method.
(i) Each of Xxxxxxx, the Company and each of the Company's
subsidiaries is a "U.S. Person" within the meaning of Section 7701(a)(30) of the
Code.
Section 3. FIRPTA CERTIFICATE. Prior to Closing, Xxxxxxx shall have
provided the Purchaser with a statement, in a form reasonably satisfactory to
the Purchaser, pursuant to Regulations Section 1.897-2(h), certifying that the
Shares are not a U.S. real property interest within the meaning of Section
897(c)(1) of the Code and dated not more than 30 days prior to the Closing Date.
Section 4. LIABILITY FOR TAXES.
(a) (1) Xxxxxxx shall be liable for, and indemnify each Newco
Group Member against, all (i) Taxes imposed on the Company or any of its
Subsidiaries, or for which the Company or any of its Subsidiaries may otherwise
be liable, for any reason, for any taxable year or period, or any portion
thereof, that ends (or is deemed to end) on or before the close of the Closing
Date except for Stub Period Taxes, as defined below; and (ii) Taxes resulting
from the
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breach of any representation or warranty in Section 2 hereof as if made on the
Closing Date imposed on the Company or any of its Subsidiaries. For purposes of
this Agreement, "Stub Period Taxes" means the excess, if any, of (A) the Taxes
of the Company and its Subsidiaries imposed on items arising from the operations
of the business of the Company and the Subsidiaries in the ordinary course for
the period beginning on January 1, 1996 and ending on the close of the Closing
Date (the "Stub Period") as allocated to the Company and its Subsidiaries
consistent with the past custom and practice of Xxxxxxx, the Company and its
Subsidiaries and as set forth on the original Tax Returns filed or to be filed
for the Stub Period, except in no event including Taxes imposed pursuant to
Regulations Section 1.1502-6 or similar provisions of state and local law and
Taxes resulting from the Company or its Subsidiaries ceasing to members of any
Combined Group (the Taxes described in this clause (A) being referred to herein
as the "Current Year Taxes"), over (B) any payments of the Current Year Taxes
made by the Company and its Subsidiaries, whether made to a governmental
authority or to any Xxxxxxx Group Member (the "Current Year Payments").
Notwithstanding anything to the contrary contained herein, Xxxxxxx shall have no
liability with respect to the indemnification required under this Section
4(a)(1) with respect to Taxes, other than Federal, state and local income Taxes,
unless and until the total of all claims for Taxes, other than Federal, state
and local income Taxes, exceeds $100,000, and then only for the amount by which
such claims for indemnity exceed $100,000. The indemnity set forth in this
Section 4(a)(1) shall be without regard to any materiality qualification set
forth in Section 2(a) hereof.
(2) Xxxxxxx shall be entitled to any refund of (or credit for
or reduction of) Taxes attributable to Xxxxxxx or any of its Affiliates
(including the Company and each of its Subsidiaries) for any taxable year or
period for which Xxxxxxx is liable for Taxes under Section 4(a)(1).
(b) (1) Newco shall be liable for, and indemnify each Xxxxxxx
Group Member against all Stub Period Taxes and Taxes for periods beginning or
deemed to begin after the Closing Date imposed on the Company or any of its
Subsidiaries.
(2) Except as provided in Section 4(a)(2) of this Agreement,
Newco shall be entitled to any refund of (or credit for or reduction of) Taxes
attributable to the Company or any of its Subsidiaries for any taxable year or
period, or portion thereof for which Newco is liable for Taxes under Section
4(b)(1).
(c) Any tax sharing agreement (except this Agreement) between or
among Xxxxxxx and/or a Xxxxxxx Group Member and any of the Company or its
Subsidiaries shall be terminated as of the Closing Date and will have no further
effect on any taxable year (whether the current year, future years or past
years). Any powers of attorney with respect to Taxes of the Company or its
Subsidiaries currently in force will be terminated effective as of the Closing
Date. The Company will remit to Xxxxxxx or the applicable government authority
all Stub Period Taxes, if any, by the applicable estimated or filing extension
Tax payment due date to the extent such Taxes are due thereon, and with respect
to the balance of the Stub Period Taxes, if any, within 30
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days after the preparation and delivery of the Tax Package as provided in
Section 5(c) hereof, but in no event, in the case of payments made to Xxxxxxx,
later than 20 days prior to the due date of the payment of such Taxes. Xxxxxxx
shall remit to the Company within 30 days after the preparation and delivery of
the Tax Package as provided in Section 5(c) hereof the amount, if any, by which
Current Year Payments exceed Current Year Taxes, except to the extent the
Company or its Subsidiaries is entitled to a refund or credit from a
governmental authority.
(d) In order appropriately to apportion any income Taxes or Tax
refunds relating to any taxable year or period that begins before and ends after
the Closing Date, the parties hereto will, to the extent permitted by applicable
law, elect with the relevant taxing authority to terminate the taxable year as
of the Closing Date. In the case where applicable law does not permit any
corporation to treat the Closing Date as the end of the taxable year of such
corporation, then whenever it is necessary to calculate the liability for income
or franchise Taxes of the corporation for a portion of a taxable year, such
determination (unless otherwise agreed to in writing by Newco and Xxxxxxx) shall
be made by a closing of the corporation's books at the end of the Closing Date,
except that exemptions, allowances or deductions that are calculated on an
annual basis, such as the deduction for depreciation, will be apportioned on a
daily basis. In order appropriately to apportion any Taxes, other than income or
franchise Taxes, relating to any taxable year or other taxable period that
begins before and ends after the Closing Date, (1) AD VALOREM Taxes (including,
without limitation, real and personal property Taxes) will be accrued on a per
diem basis over the period for which the Taxes are levied, or if it cannot be
determined over what period the Taxes are being levied, over the fiscal period
of the relevant taxing authority, in each case irrespective of the lien or
assessment date of such Taxes, and (2) franchise and other privilege Taxes not
measured by income will be accrued on a per diem basis over the period to which
the privilege relates. In either such event, the taxable period shall for
purposes of this Agreement be deemed to end on the close of the Closing Date.
(e) The Combined Group of which Xxxxxxx is a member will include the
Company and each of its Subsidiaries in its federal consolidated income Tax
return for the Taxable periods ending on or before or including the Closing
Date, and any Combined Group will include the Company and each of its
Subsidiaries for the Taxable periods ending on or before the Closing Date in all
state combined, consolidated or unitary Tax returns, as applicable, in
accordance with past custom and practice.
(f) Xxxxxxx and Newco shall each pay, and shall indemnify each other
against 50% of any real property transfer or gains Tax, sales Tax, use Tax,
stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions
contemplated by this Agreement.
(g) All obligations hereunder shall extend to the applicable statute
of limitations relating thereto.
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(h) All payments hereunder shall be treated for Tax reporting
purposes as an adjustment to the consideration for the Shares acquired under the
Contribution Agreement and all parties agree to report such payments
consistently therewith.
(i) If, as a result of any action, suit, investigation, audit,
claim, assessment or amended Tax Return, there is any change after the Closing
Date in an item of income, gain, loss, deduction, credit or amount of Tax that
results in an increase in a Tax liability for which Xxxxxxx would be liable
pursuant to Section 4(a) or loss of a Tax attribute by Xxxxxxx or its
Affiliates, and such change results in an actual decrease (the "Decrease
Amount") in the Tax liability of Newco, the Company, any of its Subsidiaries or
any Affiliate thereof for any taxable year or period beginning after the Closing
Date, then Xxxxxxx shall be entitled to the full amount of such Decrease Amount
by a payment by Newco of an amount equal to the Decrease Amount at the time and
in the amount actually realized by Newco, the Company, the Subsidiaries or
Affiliates, as the case may be. If, as a result of any action, suit,
investigation, audit, claim assessment or amended Tax Return, there is any
change after the Closing Date in an item of income, gain, loss, deduction,
credit or amount of Tax that results in an increase in a Tax liability for which
Newco or its Affiliates would be liable pursuant to Section 4(b) or loss of a
Tax attribute by Newco or its Affiliates, and such change results in a Decrease
Amount in the Tax liability of any Xxxxxxx Group Member or the Company or its
Subsidiaries, for any taxable year or period beginning before the Closing Date,
then Newco shall be entitled to the full amount of such Decrease Amount by a
payment by Xxxxxxx of an amount equal to the Decrease Amount at the time and in
the amount actually realized by the Xxxxxxx Group Member. In all cases, if a
Decrease Amount is subsequently reversed or reduced, any payments made under
this Section 4(i) shall be returned to the party making payment with respect
thereto.
Section 5. TAX RETURNS.
(a) Xxxxxxx shall file or cause to be filed when due all income Tax
Returns of any Combined Group for taxable years or periods ending on or before
the Closing Date and shall remit or cause to be remitted any Taxes due in
respect of such Tax Returns. Newco shall file or cause to be filed when due all
Tax Returns that are required to be filed after the Closing Date by or with
respect to the Company and each of its Subsidiaries (other than the income Tax
Returns of any Combined Group) for periods including the Closing Date and shall
remit or cause to be remitted any Taxes due in respect of such Tax Returns.
Xxxxxxx or Newco shall pay the other party for the Taxes for which Xxxxxxx or
Newco, respectively, is liable pursuant to Section 4 of this Agreement but which
are payable with any Tax Return to be filed by the other party pursuant to this
Section 5(a) in accordance with the provisions of Section 4(c) hereof regarding
Tax Returns for the Combined Group of which Xxxxxxx is a member for the Stub
Period. All Tax Returns which Newco and Xxxxxxx are required to file or cause to
be filed in accordance with this Section 5(a) shall be prepared and filed in a
manner consistent with past practice and, on such Tax Returns, no position shall
be taken, elections made or method adopted that is inconsistent with positions
taken, elections made or methods used in preparing and filing similar Tax
Returns in prior periods.
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(b) Neither Xxxxxxx nor any Affiliate thereof, shall amend, refile
or otherwise modify any Tax Return relating in whole or in part to the Company
or any Subsidiary with respect to any taxable year or period ending on or before
Closing Date without the prior written consent of Newco, which consent may not
be unreasonably withheld.
(c) Newco shall cause the Company and each of its Subsidiaries to
prepare and provide to Xxxxxxx no later than 20 days prior to the due date of
the applicable Tax Returns, giving regard to extensions, a package of Tax
information materials, including, without limitation, schedules and work papers
(the "TAX PACKAGE") required by Xxxxxxx to enable Xxxxxxx to prepare and file
all Tax Returns required to be prepared and filed by it pursuant to Section
5(a). The Tax Package shall be completed in accordance with past practice,
including past practice as to providing such information and as to the method of
computation of separate taxable income or other relevant measure of income of
the Company. Xxxxxxx shall use the Tax Package in preparing all relevant Tax
returns.
Section 6. CONTEST PROVISIONS.
(a) Xxxxxxx shall have the sole right to represent the Company's and
each Subsidiaries' interests in any Tax audit or administrative or court
proceeding relating to taxable periods ending (or deemed to end) on or before
the Closing Date, and to employ counsel of its choice at its expense, PROVIDED
THAT neither Xxxxxxx nor any of its appointed representatives shall settle or
prosecute any Tax claim in a manner that would have an adverse effect on Newco,
the Company, the Subsidiaries or their Affiliates without the prior written
consent of Newco, which consent may not be unreasonably withheld.
(b) Newco shall have the sole right to represent the Company's and
each of its Subsidiaries' interests in all Tax audits or administrative or court
proceedings relating to the Company and its Subsidiaries for all taxable periods
beginning (or deemed to begin) after the Closing Date hereof; PROVIDED THAT
Newco shall not settle or prosecute any Tax claim in a manner that would have an
adverse effect on any Xxxxxxx Group Member without the prior written consent of
Xxxxxxx, which consent may not be unreasonably withheld, and provided further
that Newco shall not settle any matter for which Xxxxxxx may be liable under
Section 4(a) hereof without the prior written consent of Xxxxxxx, which consent
may not be unreasonably withheld.
Section 7. ASSISTANCE AND COOPERATION. After the Closing Date, each
of Xxxxxxx and Newco shall (and shall cause their respective Affiliates to):
(a) assist the other party in preparing any Tax Returns which such
other party is responsible for preparing and filing in accordance with Section
5(a) of this Agreement;
(b) cooperate fully in preparing for any audits of, or disputes with
taxing authorities regarding, any Tax Returns of the Company and each of its
Subsidiaries;
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(c) make available to the other and to any taxing authority as
reasonably requested all information, records, and documents relating to Taxes
of the Company and each of its Subsidiaries;
(d) provide timely notice to the other in writing of any pending or
threatened Tax audits or assessments of the Company and each of its Subsidiaries
for taxable periods for which the other may have a liability under this
Agreement;
(e) furnish the other with copies of all correspondence received
from any taxing authority in connection with any Tax audit or information
request with respect to any such taxable period;
(f) timely sign and deliver such certificates or forms as may be
necessary or appropriate to establish an exemption from (or otherwise reduce),
to file Tax Returns or other reports with respect to, Taxes described in Section
4(f) of this Agreement (relating to sales, transfer and similar Taxes); and
(g) report the transactions contemplated by the Contribution
Agreement as an exchange under Section 351 of the Code and shall take no action
inconsistent therewith.
Section 8. GENERAL PROVISIONS.
(a) DISPUTES. If Newco and the Purchaser are unable to reach mutual
agreement on any matter covered by this Agreement, including, without
limitation, matters regarding computation of Tax liabilities, within an
appropriate period of time taking into account relevant due dates for Tax
Returns and similar items, but in any event within 90 days of such disagreement,
such disagreement shall be submitted for resolution to such nationally
recognized independent certified public accounting firm as is mutually agreed
upon by Newco and Xxxxxxx (a "Tax Referee"). If the parties can not agree on a
Tax Referee, the Tax Referee shall be picked by two nationally recognized
accounting firms, one picked by Newco and one picked by Xxxxxxx; provided,
however, that the Tax Referee so picked may not then be the accountant regularly
employed by Newco or Xxxxxxx. The decision of the Tax Referee shall be binding
on the parties. The fees of the Tax Referee shall be shared equally by Newco and
Xxxxxxx.
(b) ENTIRE AGREEMENT; BINDING EFFECT. This Agreement (i) constitutes
the entire agreement and supersedes all other agreements and understandings,
both written and oral, between the parties with respect to the subject matter
hereof, except for matters covered in the Contribution Agreement, and (ii) shall
not be assigned by either party (by operation of law or otherwise) without the
prior written consent of the other party.
(c) SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable, the
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
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(d) APPLICABLE LAW. This Agreement shall be governed by and be
construed in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to the principles thereof relating to conflicts of laws.
(e) NOTICES. All notices, requests and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
if telecopied (only if confirmed), if sent by FedEx or other overnight courier
or delivery service or if mailed by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following addresses or
facsimile numbers:
To the Newco: JHFSC Acquisition Corp.
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxxx X. Xxxxxxx
With copies to: Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxxx X. Xxxx, Esq.
To Xxxxxxx: Xxxx Xxxxxxx Subsidiaries, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxxx Xxxxx, Vice Chairman
and Chief Investment Officer
With a copy to: Xxxx Xxxxxxx Subsidiaries, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Second Vice President and Counsel
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Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 617-526-5000
Attn: Xxxxxxx X. Carp, Esq.
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) on the date of personal delivery or facsimile transmission
(with telephone confirmation), or (b) one Business Day after being sent, if sent
by federal express, or (c) three Business Days after being sent, if sent by
registered or certified mail.
(f) AMENDMENT AND WAIVER. No amendment of any provision of this
Agreement shall in any event be effective, unless the same shall be in writing
and signed by the parties hereto. Any failure of any party to comply with any
obligation, agreement or condition hereunder may only be waived in writing by
the other party, but such waiver shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. No failure by any party to
take any action against any breach of this Agreement or default by the other
party shall constitute a wavier of such party's right to enforce any provision
hereof or to take any such action.
(g) PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and their respective successors
and assigns, and nothing in this Agreement, express or implied, is intended to
confer upon any other person any rights or remedies of any nature whatsoever
under or by reason of this Agreement.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(i) HEADINGS; PRONOUNS AND CONJUNCTIONS. The section and other
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Unless
otherwise indicated herein or the context otherwise requires, the singular shall
include the plural and the plural shall include the singular. The word "or"
shall not be deemed inclusive.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
(Corporate Seal)
ATTEST: JHFSC ACQUISITION CORP.
/s/ Xxxxx X. XxXxx By: /s/ Xxxx X. Xxxxxxxxx
---------------------------- ---------------------------
Secretary Title: President
(Corporate Seal)
ATTEST: XXXX XXXXXXX SUBSIDIARIES, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
---------------------------- ---------------------------
Secretary Title: Treasurer
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CONTRIBUTION AGREEMENT FOR THE FORMATION
OF JHFSC ACQUISITION CORPORATION
SCHEDULE 2 ATTACHEMENT TO THE TAX MATTERS AGREEMENT:
1) The statute of limitations has been extended for the Company and Subsidiary
for federal tax purposes as part of the Xxxxxxx Group consolidated return from
1987 to present.
2) The statute of limitations has been extended, or has yet to toll, for the
following entities for the applicable periods and jurisdictions listed.
ENTITY: JURISDICTION: PERIODS:
Xxxxxx Xxxxxxx, Inc. New York State - Corp. Tax 1990 - Present
Xxxxxx Xxxxxxx, Inc. Conneticut State - Corp. Tax 1990 - Present
Freedom Capital New York City - Corp. Tax 1991 - Present
Xxxx Xxxxxxx Clearing Corp. New York City - Corp. Tax 1994 - Present
Xxxxxx Xxxxxxx Leasing New York State - Corp. Tax 1975 - Present
