EXHIBIT 10.8
TAX ALLOCATION AGREEMENT
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This Tax Allocation Agreement is entered into this 4th day of March, 1996
by and between Trilogy Development Group, Inc. ("Trilogy"), a Delaware
corporation, and xxXxxxx.xxx, Inc. ("pcOrder"), a Delaware corporation.
WHEREAS, the parties hereto are members of the Trilogy Group; and
WHEREAS, it is the intent and desire of the parties hereto that a method be
established for determining the rights and obligations among the parties as to
Tax liabilities, refunds and related administrative matters;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
SECTION 1.
(a) Definitions. As used in this Agreement, the following terms, when
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capitalized, shall have the following meanings:
(i) Agreement means this Tax Allocation Agreement, as amended from
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time to time.
(ii) Code means the Internal Revenue Code of 1986, as amended, or any
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similar or successor statute.
(iii) pcOrder SubGroup means pcOrder and all other corporations that,
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as of the date hereof, would be members of an affiliated group
of corporations (within the meaning of Section 1504(a) of the
Code) of which pcOrder would be the common parent if it were not
a subsidiary of Trilogy and any other corporation which may
become a member of such affiliated group;
(iv) pcOrder SubGroup Member means any corporation which is a member
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of the pcOrder SubGroup.
(v) Composite Return means any state, local or foreign income Tax
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return or other Tax return which has been or will be filed by
any Trilogy SubGroup Member or pcOrder SubGroup Member which
computes Taxes payable to a taxing jurisdiction in respect of
the income, operations or assets of two or more corporations
(including at least one pcOrder SubGroup Member and one Trilogy
SubGroup Member) (based on so-called "combined or consolidated
reporting" or apportionment of business income under the so-
called "unitary business" concept.
(vi) Consolidated Federal Return shall mean a consolidated federal
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income Tax return filed pursuant to Section 1502 of the Code by
Trilogy on behalf of the Trilogy Group.
(vii) Consolidated Return Year means any taxable year (or portion
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thereof) with respect to which any pcOrder SubGroup Member is
included in a Consolidated Federal Return or Composite Return.
(viii) Distribution means a distribution of the stock of pcOrder to the
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shareholders of Trilogy.
(ix) Final Determination means, with respect to any issue or item
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for any period, (A) in the context of federal income Taxes, (I)
a final, unappealable decision by a court of competent
jurisdiction, (II) the expiration of the time for assessment of
Taxes or xxxxxx a claim for refund or, if a refund claim has
been timely filed, the expiration of the time for instituting
suit in respect of such refund claim, if no further adjustment
to the items of income, gain, deduction, loss, or credit for
such period may thereafter be made, (III) the execution of a
closing agreement under Section 7121 of the Code, (IV) the
acceptance by the IRS or its counsel of a tender pursuant to an
offer in compromise pursuant to Section 7122 of the Code, (V)
the execution of a Form 870A, or (VI) any other final and
irrevocable determination of Taxes for any period, and (B) in
the context of other Taxes, any comparable, final, unappealable,
and irrevocable determination of Taxes for such period..
(x) IRS shall mean the United States Internal Revenue Service or any
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successor hereto.
(xi) Regulations means the Treasury Regulations under the Code.
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(xii) Reorganization means those transfers of assets and stock by
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members of the Trilogy Group after ______________ and before
____________ in connection with the organization of the pcOrder
SubGroup.
(xiii) Trilogy SubGroup means Trilogy and each other corporation which
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is a member of the Trilogy Group and is not a pcOrder SubGroup
Member.
(xiv) Trilogy SubGroup Member means any corporation which is a member
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of the Trilogy SubGroup.
(xv) Trilogy Group means Trilogy and each corporation which is a
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member of the affiliated group of which it is the common parent
within the meaning of Section 1504(a) of the Code.
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(xvi) SubGroup means either the pcOrder SubGroup or the Trilogy
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SubGroup.
(xvii) SubGroup Composite Tax Liability means, with respect to any
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Composite Return and SubGroup, the state, local or foreign Tax
liability for the related Consolidated Return Year properly
allocable to such SubGroup in accordance with principles
analogous to those applicable in determining SubGroup Federal
Tax Liability, provided that a Tax which is payable with respect
to such Composite Return, but which would not be so payable if
the income, operations or assets of a corporation were not taken
into account in determining such Tax, shall be treated as
allocable to such corporation and the SubGroup of which it is a
member.
(xviii) SubGroup Federal Tax Liability means, with respect to any
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Consolidated Federal Return and SubGroup, the federal income Tax
liability of such SubGroup for the related Consolidated Return
Year computed as if the SubGroup had filed a separate
consolidated federal income Tax return for such year, subject to
adjustments in accordance with Section 1.1552-1(a)(2)(ii)(a)-(h)
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of the Regulations or any similar or successor provision (for
purposes of such adjustments only, treating all members as part
of a single consolidated group).
(xix) Tax shall mean any income or income-based tax (including federal
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income tax, state or local income or franchise tax, and foreign
income tax) imposed under Subtitle A of the Code or similar laws
of any taxing authority, payroll and employee withholding taxes
(imposed under Chapters 21 through 24 of the Code) or any
similar or comparable payroll and employee withholding taxes
(including disability withholding taxes) imposed by the laws of
any taxing authority, other domestic and foreign withholding
taxes, sales and use taxes, excise taxes, real and personal
property taxes, and any other governmental imposition generally
referred to as or in the nature of a tax. Any reference in this
Agreement to a Tax (or refund thereof) shall also be deemed to
include any interest, additions to Tax, or penalties that may be
payable in respect thereof.
(b) Operating Rule. For all purposes herein, the pcOrder SubGroup shall be
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deemed to have existed, and each pcOrder SubGroup Member shall be
deemed to have been a member of the pcOrder SubGroup, at all times
subject to this Agreement.
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SECTION 2. Returns and Controversies
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(a) Consolidated Federal Returns
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(i) Preparation and Filing of Returns. Trilogy shall have exclusive
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authority to file Consolidated Federal Returns. Subject to the
terms of this Agreement, Trilogy shall be responsible for the
timely filing of, and shall be liable, and shall indemnify each
pcOrder SubGroup Member, for any penalties or other damages
attributable to failure of Trilogy to make timely filings of
Consolidated Federal Returns or full and timely payment of all
amounts shown to be due thereon; provided, however, that pcOrder
shall be responsible for making timely payment to Trilogy of all
amounts due to Trilogy by pcOrder pursuant hereto and providing
Trilogy with all information reasonably required by Trilogy with
respect to the income, operations and assets of each pcOrder
SubGroup Member so as to permit Trilogy to prepare and file such
Consolidated Federal Returns and to make payments of the Tax
shown to be due thereon, including estimated payments, on a
timely basis. In calculating amounts to be shown as due on the
Consolidated Federal Return with respect to a Consolidated
Return Year during which a pcOrder SubGroup Member ceases to be
a member, all items of each pcOrder SubGroup Member (including
items triggered by reason of such corporation or corporations
ceasing to be a member of the Trilogy Group) shall be taken into
account in accordance with Regulations (S) 1.1502-76(b) and no
election shall be made under Regulations (S) 1.1502-76(b)(2)(ii)
or Regulations (S) 1.1502-76(b)(2)(iii).
(ii) Controversies. Trilogy shall have exclusive authority to
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represent each pcOrder SubGroup Member before the IRS or any
other governmental agency or authority or any court regarding
all federal income Tax matters related to Consolidated Federal
Returns, including, but not limited to, (A) the exclusive
control of any response to any examination by the IRS or any
other taxing authority and (B) the exclusive control over any
contest of any issue through a Final Determination, including,
but not limited to whether and in what forum to conduct such
contest and whether and on what basis to settle such contest.
Trilogy shall timely notify pcOrder of any correspondence and
Tax controversies with any taxing authority relating to items of
any pcOrder SubGroup Member and will promptly provide pcOrder
with copies of all such correspondence. Subject to Trilogy's
exclusive authority as provided for herein, pcOrder shall have
the right to consult with Trilogy with respect to the handling
of any such correspondence
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or controversies. pcOrder shall exercise such right, if at all,
on a timely basis. Trilogy shall permit pcOrder to attend any
hearing or other proceedings relating to any such controversies
to the extent that the subject of such hearing or proceedings
relates to a pcOrder SubGroup Member.
(b) Composite Returns.
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(i) Tax Returns and Payments. Trilogy or a Trilogy SubGroup Member
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designated by Trilogy shall have exclusive authority to file
each Composite Return. Subject to the terms of this Agreement,
Trilogy shall be responsible for the timely filing of, and shall
be liable, and shall indemnify each pcOrder SubGroup Member, for
any penalties or other damages attributable to failure of
Trilogy or its designee to make timely filings of Composite
Returns or full and timely payment of all amounts shown to be
due thereon; provided, however, that pcOrder shall be
responsible for making timely payment to Trilogy of all amounts
due to Trilogy by pcOrder pursuant hereto and providing Trilogy
or its designee with all information reasonably required by
Trilogy or its designee with respect to the income, operations
and assets of any pcOrder SubGroup Member so as to permit
Trilogy or its designee to prepare and file such Composite
Returns and to make payments of the Tax shown to be due thereon,
including estimated Tax payments, on a timely basis.
(ii) Controversies. Trilogy or its designee shall have exclusive
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authority to represent each pcOrder SubGroup Member before any
governmental agency or any court regarding Tax matters related
to any Composite Return, including, but not limited to, (A) the
exclusive control of any response to any examination by any
taxing authority, and (B) the exclusive control over any contest
of any issue therein through a Final Determination, including,
but not limited to whether and in what forum to conduct such
contest and whether and on what basis to settle such contest.
Trilogy or its designee shall timely notify pcOrder of any
correspondence and Tax controversies with any taxing authority
relating to items of any pcOrder SubGroup Member and will
promptly provide pcOrder with copies of all such correspondence.
Subject to Trilogy's exclusive authority as provided for herein,
pcOrder shall have the right to consult with Trilogy with
respect to the handling of any such correspondence or
controversies. pcOrder shall exercise such right, if at all, on
a timely basis. Trilogy or its delegee shall permit pcOrder to
attend any hearing or other proceedings relating to such
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controversies to the extent that the subject of such hearings or
proceeding relates to a pcOrder SubGroup Member.
(c) All Other Returns.
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(i) Preparation and Filing of Returns. Except as otherwise provided
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herein or as the parties may otherwise agree, Trilogy or a
Trilogy SubGroup Member designated by Trilogy shall have
exclusive authority to file all Tax returns (other than
Consolidated Federal Returns and Composite Returns) with respect
to the income, operations or assets of Trilogy SubGroup Members.
Subject to the terms of this Agreement, Trilogy shall be
responsible for the timely filing of, and shall be liable, and
shall indemnify each pcOrder SubGroup Member, for the full and
timely payment of all amounts shown to be due on such returns;
provided, however, that pcOrder shall be responsible for
providing Trilogy all information reasonably requested by
Trilogy with respect to the income, operations and assets of
each pcOrder SubGroup Member so as to permit Trilogy to prepare
and file such returns and to make payments of the Tax, including
payments of estimated Tax, shown to be due thereon on a timely
basis.
Except as otherwise provided herein or as the parties may
otherwise agree, pcOrder or a pcOrder SubGroup Member designated
by pcOrder shall have exclusive authority to file all Tax
returns (other than Consolidated Federal Returns and Composite
Returns) with respect to the income, operations or assets of
pcOrder SubGroup Members. Subject to the terms of this Agreement
pcOrder shall be responsible for the timely filing of, and shall
be liable, and shall indemnify each Trilogy SubGroup Member, for
the full and timely payment of all amounts shown to be due on
such returns; provided, however, that Trilogy shall be
responsible for providing pcOrder all information reasonably
required by pcOrder with respect to the income, operations and
assets of each Trilogy SubGroup Member so as to permit pcOrder
to prepare and file such returns and to make payments of the Tax
shown to be due thereon, including payments of estimated Tax, on
a timely basis.
(ii) Controversies. Except as otherwise provided herein or as the
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parties may otherwise agree, each of Trilogy and pcOrder, at its
expense, shall have exclusive authority to represent itself and
the members of its respective SubGroup before the IRS or any
other taxing authority or any court regarding the Tax
consequences of the income, operations and assets of it or the
members of its respective SubGroup with respect to all Taxes
required to be shown on returns subject to Section 2(c)(i)
above.
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SECTION 3. Allocation of Tax Liabilities.
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(a) Federal Income Tax.
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(i) Payments. With respect to each Consolidated Return Year, (A) if
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the SubGroup Federal Tax Liability of the pcOrder SubGroup is
greater than zero, pcOrder will pay such amount to Trilogy and
(B) if such SubGroup Federal Tax Liability is zero, Trilogy
shall pay to pcOrder the excess, if any, of (I) the SubGroup
Federal Tax Liability of the Trilogy Group for such Consolidated
Return Year over (II) the actual federal consolidated income tax
payable with respect to the Trilogy Group for such consolidated
return year. For purposes of determining payment obligations
under this Section 3(a), the SubGroup Federal Tax Liability of
the pcOrder SubGroup shall be decreased by the portion of such
liability attributable to the Reorganization or a Distribution,
and the SubGroup Federal Tax Liability of the Trilogy SubGroup
shall be increased by the same amount.
(ii) Estimated Tax. Trilogy will have the right to assess pcOrder
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for an appropriate portion of any estimated consolidated federal
income Tax payments, determined in accordance with the
principles of Section 3(a)(i), at the time such payments are
required to be made. Any payments will be credited against the
amounts otherwise payable under Section 3(a)(i).
(iii) Earnings and Profits Allocation. The parties understand that the
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method of allocation of federal income Tax liabilities used for
the determination of earning and profits for federal income Tax
purposes under governing law may differ from the methods
prescribed herein for sharing of economic burdens of such Taxes.
To the extent permitted by governing law and not otherwise
inconsistent with the best interests of Trilogy, Trilogy agrees
to make an election or take any other action permitted under
governing law which would cause such method of allocation to
resemble as closely as practical the method of sharing the
economic burdens of such Tax hereunder.
(iv) Alternative Minimum Tax. If the Trilogy Group has a federal
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alternative minimum Tax liability for any year, payments shall
be made between Trilogy and pcOrder so that the burden of such
Tax is borne by the parties in accordance with principles
analogous to those of Section 3(a)(i). For these purposes,
liability under Section 59A of the Code or any other federal Tax
imposed by reference to alternative minimum Tax principles will
be treated as a federal alternative minimum Tax liability.
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(v) Subsequent Adjustments. Trilogy shall be responsible and
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liable, and shall indemnify each pcOrder SubGroup Member, for
any and all increases in Taxes required to be shown on
Consolidated Federal Returns and shall be entitled to any refund
or credit attributable to any and all decreases in such Taxes,
provided that such increases or decreases have been determined
pursuant to a Final Determination and are allocable to any
Trilogy SubGroup Member. pcOrder shall be responsible and
liable, and shall indemnify each Trilogy SubGroup Member, for
any and all increases in such Taxes, and shall be entitled to
any refund or credit attributable to any and all decreases in
such Taxes, provided that such increases or decreases have been
determined pursuant to a Final Determination and are allocable
to any pcOrder SubGroup Member. For purposes of determining the
amount of any federal income Tax increases or decreases that are
allocable to any pcOrder SubGroup Member, on the one hand, or to
any Trilogy SubGroup Member, on the other hand, the amounts
computed under Section 3(a)(i) above shall be recomputed to take
into account all adjustments made in accordance with the Final
Determination.
(b) Composite Returns.
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(i) Payments. With respect to each Composite Return filed pursuant
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to Section 2(b) above and related Consolidated Return Year,
Trilogy or its designee shall compute the SubGroup Composite Tax
Liability of the pcOrder SubGroup and, if necessary, the
SubGroup Composite Tax Liability of the Trilogy SubGroup.
Trilogy shall notify pcOrder of each allocation of Tax to any
pcOrder SubGroup Member and the computations thereof. pcOrder
shall pay to Trilogy, or Trilogy shall pay to pcOrder, an amount
with respect to each Composite Return determined in accordance
with principles analogous to those of Section 3(a) above. For
purposes of determining payment obligations under this Section
3(b), the SubGroup Composite Tax Liability of the pcOrder
SubGroup shall be decreased by the portion of such liability
attributable to the Reorganization or a Distribution, and the
SubGroup Composite Tax Liability of the Trilogy SubGroup shall
be increased by the same amount.
(ii) Trilogy will have the right to assess pcOrder for an appropriate
portion of any estimated composite return payments determined in
accordance with principles analogous to those of Section 3(a)
above.
(iii) Subsequent Adjustments. Trilogy shall be responsible and liable,
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and shall indemnify each pcOrder SubGroup Member, for any and
all increases in Taxes required to be shown on Composite Returns
and shall be entitled to any refund or credit attributable to
any and all
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decreases in such Taxes, provided that such increases or
decreases have been determined pursuant to a Final Determination
and are allocable to any Trilogy SubGroup Member. pcOrder shall
be responsible and liable, and shall indemnify each Trilogy
SubGroup Member, for any and all increases in such Taxes and
shall be entitled to any refund or credit attributable to any
and all decreases in such Taxes, provided that such increases or
decreases have been determined pursuant to a Final Determination
and are allocable to any pcOrder SubGroup Member. For purposes
of determining the amount of any such Tax increases or decreases
that are allocable to any pcOrder SubGroup Member, on the one
hand, or to any Trilogy SubGroup Member, on the other hand,
Trilogy shall recompute the amount provided in Section 3(b)(i)
above to take into account all adjustments made in accordance
with the Final Determination.
(c) Other. Trilogy shall be responsible and liable for, and shall indemnify
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and hold each pcOrder SubGroup Member harmless from, any increases in,
and shall be entitled to any refund or credit resulting from or
attributable to any decreases in, any and all Taxes of any Trilogy
SubGroup Member described in Section 2(c)(i) above. pcOrder shall be
responsible and liable for, and shall indemnify and hold each Trilogy
SubGroup Member harmless from, any increases in, and shall be entitled
to any refund or credit resulting from or attributable to any decreases
in, any and all Taxes of any pcOrder SubGroup Member described in
Section 2(c)(i) above.
(d) Distribution. If at the time of any Distribution any Tax attribute of
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any pcOrder SubGroup Member (including without limitation any Tax
credit, net operating loss or net capital loss) shall have been taken
into account, and shall have resulted in a reduction in Tax required to
be shown, on a Consolidated Federal Return or a Composite Return, but
shall not have been taken into account in determining the payment
obligations of the parties pursuant to Section 3 hereof, Trilogy shall
pay to pcOrder the actual Tax savings realized as a result of such Tax
attribute. If at the time of any Distribution, any pcOrder SubGroup
Member shall have available to it for future benefit in connection with
any Consolidated Federal Return or any Composite Return, a Tax
attribute (including without limitation any Tax credit, net operating
loss or net capital loss) which shall have been taken into account in
determining the payment obligations of the parties pursuant to Section
3 hereof, pcOrder shall pay to Trilogy the actual Tax savings realized
as a result of such Tax attribute at the time such savings are
realized.
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SECTION 4. Administrative Matters.
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(a) General. The provisions of this Agreement will be administered by
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Trilogy. Except as otherwise expressly governed by the terms of this
Agreement, Trilogy or its designee may use any reasonable method in
making any computations or allocations hereunder, and such calculations
will be conclusive unless a written objection is provided to Trilogy by
pcOrder within one year of such calculations to pcOrder. If written
objection is timely made by pcOrder, and if the parties are unable to
agree upon the correct calculations, the disputed issue shall be
submitted to Ernst & Young LLP or another Big Six accounting firm
selected by Trilogy in its reasonable discretion, whose determination
will be final.
(b) Power of Attorney. In order to carry out the purposes and intent of
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this Agreement, pcOrder hereby grants, and agrees that it will cause
each pcOrder SubGroup Member to grant, to Trilogy and to appropriate
officers of Trilogy a power of attorney to undertake in the name of the
appropriate pcOrder SubGroup Members any action contemplated herein,
including without limitation the filing of returns and claims for
refund, making of elections, handling of controversies, and receipt of
refunds provided that subsequent to any Distribution such power of
attorney shall relate only to Consolidated Federal Returns or Composite
Returns. To the extent that such power of attorney is not recognized or
respected, pcOrder agrees to take, and to cause each pcOrder SubGroup
Member to take, such further actions, including grants to Trilogy of
additional powers of attorney or execution of returns or other
documents, as may be reasonably requested by Trilogy to carry out the
provisions of this Agreement.
(c) Payments. Any amount to be paid by either party to the Agreement to the
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other pursuant to Section 3(a) or Section 3(b) shall be paid not less
than 5 days before the applicable Tax return is due. Amounts owed by
either party hereto in respect of Tax refunds or credits received by
such party to which the other party is entitled hereunder shall be paid
by the party receiving the refund to the other party within 5 days
after the receipt or credit of such refund, and amounts owed by either
party hereto in respect of Tax increases shall be paid by such party to
the other party within 30 days after the Final Determination with
respect thereto. If not timely paid, any amounts payable hereunder will
bear interest from the date due at 1% in excess of the prime lending
rate (however designated) of the First National Bank of Boston as in
effect from time to time. Trilogy is hereby authorized to offset
amounts payable to it hereunder against any pcOrder SubGroup Member,
whether such sums are in the possession of Trilogy or of another
member.
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(d) Records. Trilogy and pcOrder agree that all records, including but not
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limited to, returns, supporting schedules, workpapers, correspondence
and other documents within the possession of either, and relating to
the Tax liabilities or refunds of either, shall be retained by each for
as long as they may be material to the determination of such
liabilities or refunds and shall be made reasonably available to either
party upon request.
(e) Return Preparation and Defense.
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(i) In General. Each party hereto agrees that it will cooperate with
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the other, and its representatives, in a prompt and timely manner,
in connection with (A) the preparation and filing of, and (B) any
administrative or judicial proceeding involving, any Consolidated
Federal Return, Composite Return or other Tax return filed or
required to be filed by Trilogy, pcOrder or members of their
respective SubGroups. Such cooperation shall include, but not be
limited to, the making available to the other party, during normal
business hours, of all books, records (including, but not limited
to, workpapers and schedules), information, officers, and
employees (without substantial interruption of employment)
reasonably requested and necessary or useful in connection with
any Tax filing, inquiry, audit, investigation, dispute,
litigation, or other matter. Notwithstanding the foregoing,
neither party shall be required to furnish to the other Tax
returns or drafts thereof (except as otherwise expressly provided
herein or as is reasonably necessary to implement the provisions
of Section 4(e)(ii) below), except that Trilogy or its designee
shall furnish to pcOrder the portions of such Tax returns
reporting the operations of pcOrder and any pcOrder SubGroup
Member and the relevant portions of all reports relating to the
examination by the IRS or any other governmental agency or taxing
authority of such Tax returns.
(ii) Draft Returns. Provided that pcOrder shall have timely provided
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the information required to be provided by it pursuant to Section
2(a) and Section 2(b) above, Trilogy shall prepare and, not less
than 5 days before filing, furnish to pcOrder drafts of those
portions of Consolidated Federal Returns and Composite Returns
which report the income, operations and assets of each pcOrder
SubGroup Member. Such draft Tax returns shall be prepared without
regard to the items of income, gain, deduction, loss, or credit of
any Trilogy SubGroup Member. Except as Trilogy may otherwise
determine after consulting with pcOrder, all items of income,
gain, deduction, loss, and credit of each pcOrder SubGroup Member
shall be reported on a basis consistent with the reporting of such
items (or substantially similar items) of the pcOrder SubGroup
Members for prior periods unless applicable law or a change in
factual circumstances requires otherwise.
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(iii) Consistency. In filing any Consolidated Federal Return or
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Composite Return, Trilogy shall make all computations of taxable
amounts and Tax on a basis consistent with the computations of
such amounts in prior Tax returns for the respective taxing
jurisdictions except to the extent otherwise required by the laws,
rules, or regulations of the respective taxing jurisdictions or
other applicable authority or as a result of a change in factual
circumstances. In determining how to treat any matter for which
there is no precedent in prior returns or controlling legal
authority, Trilogy shall in good faith take into account the
reasonable interests of pcOrder after due consultation with
pcOrder.
(f) Carrybacks. Deductions, losses, or credits of any pcOrder SubGroup
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Member arising in a period in which such pcOrder SubGroup Member is not
included in a Consolidated Federal Return or a Composite Return
pursuant to Section 2 hereof may, under applicable law, be available
for carryback to a period in which such pcOrder SubGroup Member was so
included. To the extent applicable law allows such a carryback to be
waived, pcOrder shall have the exclusive authority to determine whether
or not to waive such carryback. To the extent the carryback is not
waivable or is not waived, Trilogy shall be entitled to the benefits of
such carryback, but shall pay to pcOrder an amount equal to the
reduction in Taxes of any Trilogy SubGroup Member attributable to such
carryback. To the extent any such carryback causes any Trilogy SubGroup
Member to incur any additional Tax, pcOrder shall pay to Trilogy an
amount equal to such additional Tax.
(g) Deemed Payment. For purposes of determining the payment obligations of
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the parties pursuant to Section 3 above, Trilogy and pcOrder each shall
be deemed to have made payments to the other in amounts sufficient to
satisfy their respective obligations with respect to all taxable
periods ending on or before September 30, 1995 on the basis of returns
filed or to be filed with respect thereto and adjustments thereto with
respect to which there has been a Final Determination on the date
thereof.
SECTION 5. Miscellaneous.
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(a) Sole Remedy. Except as explicitly provided in this Agreement, no
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pcOrder SubGroup Member will have any claim against any Trilogy
SubGroup Member for payment of Taxes or for compensation for use of
such pcOrder SubGroup Member's Tax attributes, including losses, and no
Trilogy SubGroup Member will have any claim against any pcOrder
SubGroup Member for payment of Taxes or for compensation for use of
such Trilogy SubGroup Member's Tax attributes, including losses.
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(b) Term. This Agreement will apply to all taxable years (or portions
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thereof) of any Trilogy SubGroup Member or any pcOrder SubGroup member
with respect to which the statutory period for assessments or refunds
under applicable law remains unexpired on the date of execution hereof,
subject to the provisions of Section 4(g) above. Unless otherwise
agreed in writing by the parties, this Agreement shall remain in force
and be binding so long as the statutory period for assessments or
refunds under applicable law remains unexpired for any taxable period
as to which either party may have a claim against the other under this
Agreement.
(c) Expenses. Unless otherwise expressly provided in this Agreement, each
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party shall bear any and all expenses that arise from their respective
obligations and rights under this Agreement. In the case of expenses
(including professional fees) incurred by Trilogy or its designee in
connection with the preparation or audit of Consolidated Federal
Returns or Composite Returns, or contests or controversies related to
such returns, Trilogy shall make an appropriate allocation of such
expenses between Trilogy and pcOrder, and pcOrder shall reimburse
Trilogy for its allocable share of such costs.
(d) Successors and Assigns. This Agreement will bind and inure to the
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benefit of the respective successors and assigns of the parties hereto;
but no assignment will relieve any party of its obligations hereunder
without the written consent of the other parties.
(e) Notices. All notices and other communications hereunder shall be in
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writing and shall be delivered by hand or mailed by registered or
certified mail (return receipt requested) to the parties at the
following addresses (or at such other addresses for a party as shall be
specified by like notice) and shall be deemed given on the date on
which such notice is received:
To Trilogy or any member of the Trilogy SubGroup:
0000 X. Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Controller
To pcOrder or any member of the pcOrder SubGroup:
0000 X. Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Controller
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(f) Governing Law. This Agreement will be construed and enforced in
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accordance with the laws of the State of Texas, without giving effect
to the principles of conflict of laws. The parties consent to the
jurisdiction of any court in Dallas County, Texas with subject matter
jurisdiction for any action arising out of matter related to this
Agreement, and waive the right to commence any action arising out of
matters related to this Agreement in any court outside Dallas County,
Texas.
IN WITNESS THEREOF, the parties hereto have caused their names to be
subscribed and executed by their respective authorized officers on the dates
indicated.
TRILOGY DEVELOPMENT GROUP, INC.,
a Delaware corporation
By:
---------------------------------------------
xxXXXXX.XXX, INC.,
a Delaware corporation
By:
---------------------------------------------
Date: ________________
14
