TAX SHARING AGREEMENT
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BETWEEN
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▇▇▇▇▇▇▇ PURINA COMPANY
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AND
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ENERGIZER HOLDINGS, INC.
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THIS AGREEMENT (the "Agreement") dated as of April 1, 2000 is made by and
between ▇▇▇▇▇▇▇ PURINA COMPANY ("▇▇▇▇▇▇▇"), a corporation organized under the
laws of the State of Missouri, and ENERGIZER HOLDINGS, INC. ("Energizer"), a
corporation organized under the laws of the State of Missouri.
WHEREAS, ▇▇▇▇▇▇▇ is the common parent of an affiliated group of domestic
corporations within the meaning of Section 1504(a) of the U. S. Internal Revenue
Code of 1986, as amended (the "Code"), which group includes Energizer (such
corporations hereinafter referred to collectively as the "▇▇▇▇▇▇▇ Domestic
Subsidiaries" and individually as a "▇▇▇▇▇▇▇ Domestic Subsidiary", and such
affiliated group shall be referred to as the "▇▇▇▇▇▇▇ Group");
WHEREAS, ▇▇▇▇▇▇▇ is also the parent of certain directly or indirectly owned
foreign corporations (such corporations hereinafter referred to collectively as
the "▇▇▇▇▇▇▇ Foreign Affiliates", and individually as a "▇▇▇▇▇▇▇ Foreign
Affiliate"), as more specifically defined below.
WHEREAS, on or before April 1, 2000, Energizer will become the common
parent of an affiliated group of domestic corporations within the meaning of
Code Section 1504(a) (such corporations hereinafter referred to collectively as
the "Energizer Domestic Subsidiaries" and individually as a "Energizer Domestic
Subsidiary", and such affiliated group shall be referred to as the "Energizer
Group");
WHEREAS, on or before April 1, 2000, Energizer will also become the parent
of certain directly or indirectly owned foreign corporations (such corporations
hereinafter referred to collectively as the "Energizer Foreign Affiliates" and
individually as the "Energizer Foreign Affiliate"), as more specifically defined
below.
WHEREAS, ▇▇▇▇▇▇▇ intends to distribute to its shareholders all of its stock
in Energizer (the "Distribution") in accordance with the terms and conditions of
the Agreement and Plan of Reorganization between ▇▇▇▇▇▇▇ and Energizer dated as
of April 1, 2000 (the "Plan of Reorganization") on April 1, 2000 (the
"Distribution Date") in accordance with a favorable ruling from the Internal
Revenue Service ("IRS") dated February 4, 2000 that the Distribution qualifies
as a nontaxable distribution of stock of a controlled corporation under Code
Section 355; and that certain ancillary transactions also qualify as nontaxable
under Code Section 355, 368(a)(1)(D), 332, 351 and 367; and,
WHEREAS, ▇▇▇▇▇▇▇ and Energizer believe that it is in their mutual best
interests to set forth in this Agreement the rights, obligations and duties of
each party with respect to various tax matters relating to the Energizer Group,
the ▇▇▇▇▇▇▇ Group, the ▇▇▇▇▇▇▇ Foreign Affiliates and the Energizer Foreign
Affiliates which may arise as a result of the Distribution.
NOW, THEREFORE, in consideration of the premises and of the agreements
herein set forth, ▇▇▇▇▇▇▇, (on its own behalf and on behalf of the ▇▇▇▇▇▇▇
Domestic Subsidiaries and the ▇▇▇▇▇▇▇ Foreign Affiliates) and Energizer (on its
own behalf and on behalf of the Energizer Domestic Subsidiaries and the
Energizer Foreign Affiliates), hereby agree as follows:
ARTICLE I. DEFINITIONS
For purposes of the provisions set forth in this Agreement,
(a) The term "Audit(s)" shall mean any audit or examination undertaken
by a Tax authority with respect to Taxes.
(b) The term "Battery Business" shall have the same meaning as the term
is given in the Plan of Reorganization.
(c) The term "Controversy(ies)" shall mean any action involving a Tax
authority before any administrative or judicial body which results from a
disagreed Tax adjustment proposed during the course of an Audit.
(d) The term "Domestic" as used herein to modify the terms "Tax",
"Taxes" or "Return", shall mean with respect to any U.S. federal, territorial,
state or local government.
(e) The terms "Energizer Employee" or "Former Energizer Employee" shall
have the same meaning as such term is given in the Plan of Reorganization.
(f) The term "Energizer Foreign Affiliate" shall mean any entity which
on or after the Distribution Date is owned directly or indirectly (or, pur-
suant to the Agreement and Plan of Reorganization, is owned beneficially)
by Energizer, and is formed under the laws of a government other than the
United States, its states or territories.
(g) The term "Foreign" as used herein to modify the terms "Tax",
"Taxes" or "Return", shall mean with respect to any government which is
not an U.S. federal, territorial, state or local government.
(h) The term "Former Battery Business" shall have the same meaning as
the term is given in the Plan of Reorganization.
(i) The term "Former ▇▇▇▇▇▇▇ Business" shall have the same meaning as
the term is given in the Plan of Reorganization.
(j) The term "Joint Foreign Affiliate" shall mean any Foreign entity
that currently or formerly conducted a ▇▇▇▇▇▇▇ Business or a Former ▇▇▇▇▇▇▇
Business and a Battery Business or a Former Battery Business, provided, however,
that, for purposes of this Agreement, after the Distribution Date any such Joint
Foreign Affiliate shall thereinafter be treated as a ▇▇▇▇▇▇▇ Foreign Affiliate
or Energizer Foreign Affiliate, as the case may be.
(k) The term "▇▇▇▇▇▇▇ Business" shall have the same meaning as the term
is given in the Plan of Reorganization.
(l) The term "▇▇▇▇▇▇▇ Employee" shall have the same meaning as the term
is given in the Plan of Reorganization.
(m) The term "▇▇▇▇▇▇▇ Foreign Affiliate" shall mean any entity which on
or after the Distribution Date is owned directly or indirectly (or, pursuant to
the Agreement and Plan of Reorganization, is owned beneficially) by ▇▇▇▇▇▇▇, is
formed under the laws of a government other than the United States, its states
or territories, and is not an Energizer Foreign Affiliate.
(n) Tax or Taxes. As used herein, "Tax" or "Taxes" shall mean any and
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all taxes, charges, fees, levies or other assessments, however denominated,
including any interest, penalties, fines, or other additions that may become
payable in respect thereof, that are imposed, by any governmental entity,
whether foreign or domestic, federal, territorial, state or local, or any agency
or political subdivision of any such governmental entity; including, but not
limited to, all income, profits, gross receipts, earnings, net worth, payroll,
withholding, unemployment insurance, Social Security, Medicare Hi, sales, use,
ad valorem, excise, franchise, license, occupation, real or personal property,
stamp, transfer, value-added, recording, registration, other governmental
charges, and other government obligations of the same or of a similar nature to
any of the foregoing, which any member of the ▇▇▇▇▇▇▇ Group or Energizer Group,
or any ▇▇▇▇▇▇▇ Foreign Affiliate or Energizer Foreign Affiliate, is required to
pay, withhold or collect. With respect to Foreign Taxes allocated between or
among the ▇▇▇▇▇▇▇ Business, the Battery Business, any Former ▇▇▇▇▇▇▇ Business,
or any Former Battery Business currently or formerly conducted by a Joint
Foreign Affiliate, Taxes shall mean the Taxes that would have been imposed had
the Battery Business or Former Battery Business been the sole business of a
single Foreign Affiliate, in accordance with Article III 1(b)(i) and (ii)
hereof.
(o) The term "Tax Return" or "Return" shall mean any return, filing,
questionnaire, information report or other document required to be filed,
including without limitation any amended returns, any documents with respect to
or accompanying payments of estimated Taxes, that may be filed, for any Tax
period with any Tax authority (domestic or foreign) in connection with any Tax
or Taxes (whether or not payment is required to be made with respect to such
filing). As used herein, "Consolidated Tax Return" shall mean a U.S. federal
income Tax Return described in Code Section 1501.
Any other capitalized terms not defined herein shall have the same meaning as in
the Agreement and Plan of Reorganization.
ARTICLE II. DOMESTIC TAXES
1. Domestic taxes - Preparation and Filing of Tax Returns, Payment of Taxes,
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Adjustments, Audits and Controversies.
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(a) Preparation and Filing of Domestic Returns.
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(i) The preparation and filing of any Domestic Tax Return for Energi-
zer or the Energizer Domestic Subsidiaries for any Tax period ending prior
to the Distribution Date shall be the responsibility of ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇
shall consistently prepare and file such Domestic Tax Returns in accordance
with its historical practices. To the extent practicable, ▇▇▇▇▇▇▇ shall permit
Energizer to review and comment on, prior to filing, any such Domestic
Tax Return.
(ii) Energizer hereby designates and Energizer agrees to cause each
of the Energizer Domestic Subsidiaries to designate ▇▇▇▇▇▇▇ irrevocably as its
agent for the purpose of taking any and all action necessary or incidental
to the filing of any Consolidated Return or any other Domestic Tax Return, as
necessary for any Tax period ending prior to the Distribution Date.
(iii) The preparation and filing of any Domestic Tax Return for
Energizer or the Energizer Domestic Subsidiaries for any Tax period
beginning on or after the Distribution Date shall be the responsibility
of Energizer. In addition, Energizer shall be responsible for the preparation
and filing of any Energizer Domestic Subsidiary Domestic Tax Return for Tax
periods beginning before and ending after the Distribution Date. For purposes
of the preceding sentence, and to the extent practicable, Energizer shall
permit ▇▇▇▇▇▇▇ to review and comment on, prior to filing, any such
Domestic Tax Return.
(b) Liability for Domestic Taxes.
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(i) Pre-Distribution Date. ▇▇▇▇▇▇▇ shall be liable for, shall indemnify and
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hold the Energizer Group harmless against, and shall make payment of any
Domestic Tax which is attributable to the Energizer Group, for any and all Tax
periods (or portions of periods) ending prior to the Distribution Date and that
portion of any Tax period straddling the Distribution Date that ends on the day
before the Distribution Date, including any such liabilities resulting from the
Audit or other adjustment to previously filed Domestic Tax Returns with respect
to any such Tax period (or portion thereof). Subject to subparagraph (iii)
hereof, ▇▇▇▇▇▇▇ shall be entitled to any and all refunds of such Domestic Taxes
for any such Tax period, including but not limited to refunds described in
subparagraph (v) hereof. For purposes of this subparagraph (b), ▇▇▇▇▇▇▇ will be
credited for any estimated Domestic Tax payments made for such Tax periods.
(ii) Post-Distribution Date. Energizer shall be liable for, shall indemnify
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and hold the ▇▇▇▇▇▇▇ Group harmless against, and make payment of any
Domestic Tax due which is attributable to the Energizer Group for all Tax
periods beginning on or after the Distribution Date and that portion of any Tax
period straddling the Distribution Date that begins on the Distribution Date and
shall be entitled to any and all refunds of such Domestic Taxes for that portion
of any such Tax period.
(iii) Proration of Taxes. To the extent permitted by law or administrative
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practice, the Tax periods of the Energizer Group and each Energizer Domestic
Subsidiary shall end on the day immediately preceding the Distribution Date.
For purposes of determining the liability for Domestic Taxes of an Energizer
Subsidiary for a portion of a taxable year or period that begins before and ends
after the Distribution Date, as necessary under applicable law, the
determination of the Domestic Taxes for the portion of the year or period ending
immediately prior to, and the portion of the year or period beginning on or
after, the Distribution Date shall be determined by assuming that the taxable
year or period ended on the day immediately preceding the Distribution Date,
except that exemptions, allowances or deductions that are calculated on an
annual basis and annual property Taxes shall be prorated on the basis of the
number of days in the applicable annual period elapsed through the day
immediately preceding the Distribution Date.
(iv) Energizer's Carryback of Post-Distribution Deductions, Losses or
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Credits. If (A) Energizer or any Energizer Domestic Subsidiary, shall be
------- entitled to carry back any net operating loss, capital loss, or other
similar losses, deductions or credits derived with respect to any period begin-
ning on or after the Distribution Date to any Tax period commencing prior
to the Distribution Date, and (B) any such carry back results in a decrease in
Domestic Taxes paid by ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Domestic Subsidiary (as com-
Pared to the Taxes ▇▇▇▇▇▇▇ or such member of the ▇▇▇▇▇▇▇ Group would
otherwise have paid solely without giving effect to such carry back), an
amount equal to any such Tax refunds (plus interest) received by ▇▇▇▇▇▇▇
or the ▇▇▇▇▇▇▇ Domestic Subsidiaries as a result of such carrybacks
shall be promptly remitted to Energizer. ▇▇▇▇▇▇▇ and Energizer agree to,
and shall cause the appropriate member(s) of their respective Groups to,
cooperate with each other in order to obtain such refunds. Energizer agrees
to reimburse the members of the ▇▇▇▇▇▇▇ Group for any reasonable out-of-
pocket expenses related thereto.
(v) Energizer's Claiming, Receiving or Using Refunds and Overpayments. If
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on or after the Distribution Date, a member of the Energizer Group receives any
refund or utilizes the benefit of any overpayment of Domestic Taxes which, in
either case, relates to Domestic Taxes paid by a member of the ▇▇▇▇▇▇▇ Group
with respect to a taxable period or portion thereof ending on or prior to the
Distribution Date, then Energizer shall promptly transfer, or cause to be
transferred to ▇▇▇▇▇▇▇ an amount equal to the entire amount of the refund or
overpayment (including interest) received or utilized by the Energizer Group.
Energizer agrees to notify ▇▇▇▇▇▇▇ within thirty (30) days after the discovery
of a right to claim any such refund or overpayment and the receipt of any such
refund or utilization of any such overpayment. Energizer agrees to, or to cause
the appropriate member of the Energizer Group to, claim any such refund or
to utilize any such overpayment as soon as possible and to furnish to ▇▇▇▇▇▇▇
all information, records and assistance necessary to verify the amount of the
refund or overpayment. ▇▇▇▇▇▇▇ and Energizer agree to, and shall cause the
appropriate member(s) of their respective Groups to, cooperate with each other
in order to obtain such refunds or overpayments and ▇▇▇▇▇▇▇ agrees to reimburse
Energizer for any reasonable out-of-pocket expenses related thereto.
(vi) Tax Liabilities/Benefits Resulting from Post Distribution Stock Option
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Exercises by Energizer Employees, Former Energizer Employees and Post
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Distribution Energizer Employees. Energizer shall be liable for any and all
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Taxes, including but not limited to, payroll, Social Security, and Medicare Hi
Taxes, imposed on an employer (the "Employer Taxes") with respect to
compensation resulting from the exercise of ▇▇▇▇▇▇▇ stock options on or after
the Distribution Date by any Energizer Employee, Former Energizer Employee or
other individual who becomes employed by a member of the Energizer Group after
the Distribution Date, if at the time of the grant of such stock option, the
recipient was an employee of the Battery Business or identified on payroll
records as an employee of the Battery Business. In the event that ▇▇▇▇▇▇▇,
acting on behalf of Energizer, pays and deposits such Employer Taxes with
respect to such compensation, then ▇▇▇▇▇▇▇ shall be entitled to reimbursement
from Energizer for such Employer Taxes, net of the tax benefit derived from any
income tax deduction to ▇▇▇▇▇▇▇ attributable to such Employer Taxes. If as a
result of such exercise of a ▇▇▇▇▇▇▇ stock option, Energizer shall be entitled
to claim on the appropriate Tax Return a corresponding income tax deduction for
the compensation expense, resulting in an actual diminution of any Domestic
Taxes, then Energizer shall pay ▇▇▇▇▇▇▇ the amount of such actual diminution of
Domestic Taxes as well as any reimbursement for Employer Taxes provided herein
within thirty (30) days after written notification of Energizer by ▇▇▇▇▇▇▇ of
such option exercise.
(vii) Tax Liabilities Resulting from Post Distribution Stock Option
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Exercises by all Other Employees. ▇▇▇▇▇▇▇ shall be liable for all Employer
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Taxes with respect to compensation resulting from the exercise of ▇▇▇▇▇▇▇ stock
options on or after the Distribution Date by any Energizer Employee or Former
Energizer Employee, if at the time of the award of the grant of the stock
option, the recipient was an employee of ▇▇▇▇▇▇▇ Purina Company or otherwise
employed by a ▇▇▇▇▇▇▇ Business. ▇▇▇▇▇▇▇ shall be entitled to claim on the
appropriate Tax Return a corresponding income tax deduction for the compensation
expense and related Employer Taxes paid. To the extent that ▇▇▇▇▇▇▇ is
entitled to such income tax deduction but Energizer is determined by a Tax
authority to be liable for such Employer Taxes, ▇▇▇▇▇▇▇ shall pay Energizer an
amount equal to such Employer Taxes, net of the tax benefit derived from any
income tax deduction to Energizer attributable to such Employer Taxes, within
thirty (30) days after a final determination by a court or administrative
authority that Energizer is so liable.
(viii) Tax Liabilities/Benefits Resulting from Other Deferred Compensation
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Payable Post Distribution. Energizer shall be liable with respect to any
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Employer Taxes with respect to payments by ▇▇▇▇▇▇▇ under the Fixed Benefit
Option of the ▇▇▇▇▇▇▇ Purina Company Deferred Compensation Plan for Key
Employees ("▇▇▇▇▇▇▇ Deferred Compensation Plan") to any Energizer Employee,
Former Energizer Employee or individual who becomes employed by a member of the
Energizer Group after the Distribution Date, if at the time of the award of a
benefit under the ▇▇▇▇▇▇▇ Deferred Compensation Plan, the recipient was an
employee of the Battery Business or identified on payroll records as an employee
of the Battery Business. In the event that ▇▇▇▇▇▇▇, acting on behalf of
Energizer, pays and deposits such Employer Taxes for which Energizer is liable
under this provision with respect to such compensation, then ▇▇▇▇▇▇▇ shall be
entitled to reimbursement from Energizer for such Employer Taxes for which it is
liable under this provision, net of the tax benefit derived from any income tax
deduction to ▇▇▇▇▇▇▇ attributable to such Employer Taxes. If as a result of
such payment of compensation by ▇▇▇▇▇▇▇, Energizer shall be entitled to claim on
the appropriate Tax Return a corresponding income tax deduction for the
compensation expense, resulting in an actual diminution of any Domestic Taxes,
then Energizer shall pay ▇▇▇▇▇▇▇ the amount of such actual diminution of
Domestic Taxes as well as any reimbursement for Employer Taxes provided herein
within thirty (30) days after written notification of Energizer of such payment.
▇▇▇▇▇▇▇ shall be liable for all Employer Taxes with respect to payments
under the ▇▇▇▇▇▇▇ Deferred Compensation Plan on or after the Distribution Date
to any Energizer Employee or Former Energizer Employee, if at the time of the
award of a benefit under the ▇▇▇▇▇▇▇ Deferred Compensation Plan the recipient
was an employee of ▇▇▇▇▇▇▇ Purina Company or otherwise employed by a ▇▇▇▇▇▇▇
Business. ▇▇▇▇▇▇▇ shall be entitled to claim on the appropriate Tax Return a
corresponding income tax deduction for the compensation expense and related
Employer Taxes paid. To the extent that ▇▇▇▇▇▇▇ is entitled to such income tax
deduction but Energizer is determined by a Tax authority to be liable for such
Employer Taxes, ▇▇▇▇▇▇▇ shall pay Energizer an amount equal to such Employer
Taxes, net of the tax benefit derived from any income tax deduction to Energizer
attributable to such Employer Taxes, within thirty (30) days after a final
determination by a court or administrative authority that Energizer is so
liable.
(ix) Reimbursement of Other Tax Benefits. Energizer shall reimburse ▇▇▇▇▇▇▇
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to the extent of Domestic Tax benefits derived by any member of the
Energizer Group, for payments made by ▇▇▇▇▇▇▇ to third parties on or after the
Distribution Date, which result in a tax deduction to Energizer or an Energizer
Domestic Subsidiary ("▇▇▇▇▇▇▇ Payments"), provided such ▇▇▇▇▇▇▇ Payments (a) are
not claimed as a deduction by ▇▇▇▇▇▇▇ for Domestic Tax purposes, (b) are
deductible on a Domestic Tax Return of the Energizer Group, and (c) result in a
reduction of Domestic Taxes of Energizer, the Energizer Group, or any Energizer
Domestic Subsidiary. The amount of the payment required hereunder for any
taxable period of Energizer shall be equal to the actual diminution of any
Domestic Taxes by reason of any ▇▇▇▇▇▇▇ Payments. Provided, however, if for any
taxable period, (X) Energizer or ▇▇▇▇▇▇▇ files an amended Domestic Tax Return
(or files a carryback or carryforward claim relating to a net operating loss),
or (Y) the IRS adjusts any item on any Energizer or ▇▇▇▇▇▇▇ Domestic Tax Return,
the amount of the payment required under this paragraph shall be recomputed
(either at the time of the filing of the amended return, or carryover or
carryback claim, or at the time of the final determination of the IRS
adjustment) to reflect such amended return, claim, or IRS adjustment, and, at
such time, either (I) ▇▇▇▇▇▇▇ shall repay any overpayment by Energizer under
this paragraph of this Article II.1(b)(ix) to Energizer, or (II) Energizer shall
pay any underpayment under this paragraph of this Article II.1(b)(ix) to
▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇ shall reimburse Energizer to the extent of Domestic Tax benefits
derived by any member of the ▇▇▇▇▇▇▇ Group for payments made by Energizer to
third parties on or after the Distribution Date, which result in a tax deduction
to ▇▇▇▇▇▇▇ or a ▇▇▇▇▇▇▇ Domestic Subsidiary ("Energizer Payments") for any
period beginning after the Distribution Date, provided such Energizer Payments
(a) are not claimed as a deduction by Energizer for Domestic Tax purposes, (b)
are deductible on a Domestic Tax Return of the ▇▇▇▇▇▇▇ Group for any period
beginning after the Distribution Date, and (c) result in a reduction of Domestic
Taxes of ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Group, or any ▇▇▇▇▇▇▇ Domestic Subsidiary. The
amount of the payment required hereunder for any taxable period of ▇▇▇▇▇▇▇ shall
be equal to the actual diminution of any Domestic Taxes by reason of any
Energizer Payments. Provided, however, if for any taxable period, (X) ▇▇▇▇▇▇▇
or Energizer files an amended Domestic Tax Return (or files a carryback or
carryforward claim relating to a net operating loss), or (Y) the IRS adjusts any
item on any ▇▇▇▇▇▇▇ or Energizer Domestic Tax Return, the amount of the payment
required under this paragraph shall be recomputed (either at the time of the
filing of the amended return, or carryover or carryback claim, or at the time of
the final determination of the IRS adjustment) to reflect such amended return,
claim, or IRS adjustment, and, at such time, either (I) Energizer shall repay
any overpayment by ▇▇▇▇▇▇▇ under this paragraph of this Article II.1(b)(ix) to
▇▇▇▇▇▇▇, or (ii) ▇▇▇▇▇▇▇ shall pay any underpayment under this paragraph of this
Article II.1(b)(ix) to Energizer.
▇▇▇▇▇▇▇ or Energizer, as the case may be, will provide, in a timely manner
(but in no event more than thirty (30) days after written request therefor),
such information as is reasonably necessary to substantiate the deduction for a
▇▇▇▇▇▇▇ Payment or an Energizer Payment, as the case may be, so as to permit
inclusion of such deduction on the appropriate Domestic Tax Return of Energizer,
the Energizer Group, or any Energizer Domestic Subsidiary or ▇▇▇▇▇▇▇, the
▇▇▇▇▇▇▇ Group, or any ▇▇▇▇▇▇▇ Domestic Subsidiary, as the case may be. At
▇▇▇▇▇▇▇'▇ or Energizer's written request, as the case may be, to the extent that
"substantial authority" (as defined in Section 6662 of the Code) exists
therefor, Energizer or ▇▇▇▇▇▇▇, as the case may be, (a) shall claim the
deduction for (and shall not report income with respect to) a ▇▇▇▇▇▇▇ Payment or
an Energizer Payment, as the case may be, on the appropriate federal, state or
local income tax return, and (b) shall contest any claim by a taxing authority
relating to the ▇▇▇▇▇▇▇ Payment or the Energizer Payment, as the case may be,
provided ▇▇▇▇▇▇▇ or Energizer, as the case may be has agreed to indemnify the
other in a manner reasonably satisfactory to Energizer or ▇▇▇▇▇▇▇, as the case
may be, for any liability or loss (including (i) interest and penalties on
Taxes, and (ii) any reasonable out-of-pocket expenses) incurred by Energizer or
▇▇▇▇▇▇▇, as the case may be, as a result of taking such return position or
pursuing such contest.
(c) Domestic Audits and Controversies.
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(i) ▇▇▇▇▇▇▇ shall, at its own expense, exclusively control and
direct any Tax Audit or Controversy with respect to any Domestic Taxes for any
Tax period ending prior to the Distribution Date. Energizer, however, shall
have the right, at its own expense, to participate in any such Audit or
Controversy to the extent such Audit or Controversy would impact the Domestic
Taxes for which Energizer is liable in accordance with this Agreement, as
determined by Energizer, and ▇▇▇▇▇▇▇ shall not consent to any resolution,
compromise or conclusion of such Audit or Controversy without the written
approval of Energizer, which approval shall not be unreasonably withheld.
Notwithstanding the foregoing, in the event ▇▇▇▇▇▇▇ shall compromise or settle
any such deficiency of Domestic Tax without the prior consent of Energizer,
▇▇▇▇▇▇▇ shall hold Energizer and any Energizer Domestic Subsidiary harmless
against any losses, costs, or damages, including Taxes resulting from such
compromise or settlement.
(ii) Energizer shall, at its own expense, exclusively control and
direct any Audit or Controversy with respect to any Domestic Taxes attributable
to the Energizer Group for a Tax period which begins on or after the
Distribution Date and for any Tax period straddling the Distribution Date.
▇▇▇▇▇▇▇, however, shall have the right, at its own expense, to participate in
any such Audit or Controversy to the extent such Audit or Controversy would
impact the Domestic Taxes for which ▇▇▇▇▇▇▇ is liable in accordance with this
Agreement, as determined by ▇▇▇▇▇▇▇, and Energizer shall not consent to any
resolution, compromise or conclusion of such Audit or Controversy without the
written approval of ▇▇▇▇▇▇▇, which approval shall not be unreasonably withheld.
Notwithstanding the foregoing, in the event Energizer shall compromise or settle
any such deficiency of Domestic Tax without the prior consent of ▇▇▇▇▇▇▇,
Energizer shall hold ▇▇▇▇▇▇▇ and any ▇▇▇▇▇▇▇ Domestic Subsidiary harmless
against any losses, costs, or damages, including Taxes resulting from such
compromise or settlement.
(d) Domestic Tax Adjustments.
--------------------------
(i) If the IRS, or any state or local taxing authority, shall make
an adjustment to any Domestic Tax Return of (A) the ▇▇▇▇▇▇▇ Group, (B) any
▇▇▇▇▇▇▇ Domestic Subsidiary, (C) Energizer, or (D) any Energizer Domestic
Subsidiary for any Tax period ending prior to the Distribution Date, and such
adjustment (including but not limited to adjustments to tax basis determination,
a tax accounting method with respect to its property and accounts included in
and carried forward from ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Domestic Subsidiaries prior to
the Distribution Date), consistently applied would require Energizer or the
Energizer Domestic Subsidiaries to make a corresponding adjustment to their
Domestic Tax Returns for periods beginning on or after the Distribution Date,
then,
(A) if such corresponding adjustment in a Domestic Tax Return
of Energizer or any Energizer Domestic Subsidiary results in an actual
diminution of any Domestic Taxes for any such period beginning on or after the
Distribution Date, whether or not an actual amended return is filed, Energizer
shall pay ▇▇▇▇▇▇▇ the amount of such Domestic Tax either (I) when such refund
and related interest are received and required to be remitted within the period
provided in Article VI 3 hereof, or (II) within thirty (30) days of written
notice by ▇▇▇▇▇▇▇ to Energizer of such corresponding adjustment, if an amended
return is not filed.
(B) if such corresponding adjustment in a Domestic Tax
Return of Energizeror any Energizer Domestic Subsidiary results in an increase
of any Domestic Tax for Energizer for such period beginning on or after the
Distribution Date, and an actual diminution of any Domestic Tax for
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ shall pay Energizer the amount of such Domestic Tax, either
due (I) when such refund and related interest are received and required to
be remitted within the period provided in Article VI.3 hereof, or (II)
within thirty (30) days of written notice by Energizer to ▇▇▇▇▇▇▇ of such
corresponding adjustment, if an amended return is not filed.
No payment shall be due under this Article II.1(d) to the extent that any
payment is made, or would be required to be made for the same adjustment, under
Article II.1(b)(ix) hereof.
(e) Domestic Transfer Taxes. ▇▇▇▇▇▇▇ shall pay any and all Domestic
-------------------------
Taxes required upon, or by virtue of, any transfer of property contemplated
under the Plan of Reorganization including the transfer of shares of stock of
Energizer Domestic Subsidiaries in connection with the Distribution.
(f) Domestic Tax Attributes.
-------------------------
(i) Any Domestic Tax attribute generated by ▇▇▇▇▇▇▇ or Energizer
shall, to the extent permitted by the applicable law of the Tax jurisdiction in
question, remain with ▇▇▇▇▇▇▇ or Energizer, respectively, or the appropriate
entity. In any case where the applicable law of the Tax jurisdiction in
question requires such Tax attribute to be allocated between ▇▇▇▇▇▇▇ and
Energizer, such allocation shall be made as provided by the law of such
jurisdiction.
Notwithstanding the foregoing, any state or local net operating
losses or Tax credits generated by a member of the Energizer Group for any Tax
period beginning prior to the Distribution Date shall be for the benefit of
▇▇▇▇▇▇▇. As permitted by the applicable law of the appropriate Tax
jurisdiction, such net operating losses or Tax credits shall be first carried
back to prior Tax periods. In the event that (i) the applicable law of the Tax
jurisdiction does not permit the carryback of such losses or Tax credits, or
(ii) such losses or Tax credits cannot be fully utilized in an allowable
carryback, then Energizer shall pay ▇▇▇▇▇▇▇ the amount of the actual diminution
of any state or local Taxes of Energizer resulting from the utilization by any
member of the Energizer Group of such losses or credits within thirty (30) days
of the filing of the Tax Return reflecting the utilization of such loss or Tax
credit, in accordance with Article VI, 3 hereof.
(ii) Any excess Foreign Tax credits of the ▇▇▇▇▇▇▇ Group, as of
the Distribution Date, as finally determined by ▇▇▇▇▇▇▇ in accordance with Code
Section 904, shall be allocated between the ▇▇▇▇▇▇▇ Group and the Energizer
Group, in accordance with Reg. 1.1502-79(d).
(iii) Any earnings and profits of the ▇▇▇▇▇▇▇ Group as of the
Distribution Date, as finally determined by ▇▇▇▇▇▇▇, shall be allocated between
the ▇▇▇▇▇▇▇ Group and the Energizer Group in accordance with Reg. 1.312-10(a).
(iv) Any Capital Loss Carryovers of the ▇▇▇▇▇▇▇ Group, as of the
end of the fiscal year that includes the Distribution Date, as finally
determined by ▇▇▇▇▇▇▇, shall be allocated between the ▇▇▇▇▇▇▇ Group and the
Energizer Group in accordance with
Reg. 1.1502-22T.
(g) Dual Resident Corporations. Energizer shall timely enter into any
---------------------------
closing agreement with ▇▇▇▇▇▇▇ and the IRS in accordance with Regs Section
1503-2(g)(2)(iv)(B)(2), to the extent necessary to avoid recapture of any "dual
consolidated loss", within the meaning of Regs. Section 1.1503-2(c)(5) generated
by any Energizer Domestic Subsidiary, which constitutes a "dual resident
corporation" within the meaning of Regs. Section 1.1503-2(c)(2). To the extent
Energizer causes the recapture of any "dual consolidated loss" created prior to
the Distribution Date, Energizer shall pay or reimburse ▇▇▇▇▇▇▇ for any taxes
and interest due as a result of the recapture.
(h) Gain Recognition Agreements. Energizer shall timely file any
-----------------------------
annual certifications required by any Agreements to Recognize Gain pursuant
to Reg. 1.367(a)-3T(g) entered into by ▇▇▇▇▇▇▇ to defer gain on a transaction
including an Energizer Foreign Affiliate. To the extent Energizer causes the
recognition of any such deferred gain after the Distribution Date, Energizer
shall pay or reimburse ▇▇▇▇▇▇▇ for any Domestic Taxes and interest due as a
result of the recognition of such gain.
ARTICLE III. FOREIGN TAXES
1. Preparation and Filing of Ttax Returns, Payment of Taxes, Adjustments,
-------------------------------------------------------------------------
Audits and Controversies.
--------------------------
(a) Preparation and Filing of Foreign Returns.
----------------------------------------------
(i) Energizer shall be responsible for the preparation and filing
of any Foreign Tax Return of any Energizer Foreign Affiliate for all Tax
Periods.
(ii) ▇▇▇▇▇▇▇ shall be responsible for the preparation and filing
of any Foreign Tax Return of any ▇▇▇▇▇▇▇ Foreign Affiliate for all Tax Periods.
(iii) In the case of any Joint Foreign Affiliate, which, after the
Distribution Date, shall become a ▇▇▇▇▇▇▇ Foreign Affiliate or an Energizer
Foreign Affiliate, as the case may be, consistent with the definition herein of
"Joint Foreign Affiliate," with the cooperation and assistance of ▇▇▇▇▇▇▇ and
Energizer, shall prepare and file any Foreign Tax Return of such entity for any
Tax period ending prior to, or straddling, the Distribution Date.
(b) Liability for Foreign Taxes.
------------------------------
(i) Except in respect of (A) the Foreign Transfer Taxes described
in subparagraph (c) below, and (B) any Foreign Taxes with respect to the (I)
U.K. Restructuring, (II) Brazilian Restructuring, (III) Mexican Restructuring,
(IV) Argentinean/Chilean Restructuring, or (V) Canadian Restructuring, as
described in Article II of the Plan of Reorganization, or (VI) the
pre-Distribution Date transactions listed on the attached Schedule A. Energizer
shall be liable for, shall indemnify and hold the ▇▇▇▇▇▇▇ Group and the ▇▇▇▇▇▇▇
Foreign Affiliates harmless against, and shall make payment of all Foreign Taxes
attributable to the Battery Business and any Former Battery Business, for any
and all Tax periods commencing before, on, or after the Distribution Date,
including any Foreign Taxes attributable to the Battery Business and the Former
Battery Business conducted by any Joint Foreign Affiliate and including any such
liabilities resulting from an Audit or other adjustment to previously filed Tax
Returns. Other than refunds of the Foreign Transfer Taxes and Foreign Taxes
with respect to the Restructurings, described in (A) and (B) above, Energizer
shall be entitled to any refund of Foreign Taxes attributable to the Battery
Business and any Former Battery Business for any such Tax periods, including any
Foreign Taxes attributable to the Battery Business and any Former Battery
Business conducted by any Joint Foreign Affiliate. The allocation of any such
Foreign Taxes between or among the ▇▇▇▇▇▇▇ Business, the Battery Business, the
Former ▇▇▇▇▇▇▇ Business or any Former Battery Business of a Joint Foreign
Affiliate shall be determined in accordance with the books and records of
▇▇▇▇▇▇▇, any ▇▇▇▇▇▇▇ Foreign Affiliate and any Joint Foreign Affiliate, as
though the Battery Business or Former Battery Business were deemed to have been
conducted as the sole business of such Joint Foreign Affiliate.
(ii) ▇▇▇▇▇▇▇ shall be liable for, shall indemnify and hold the
Energizer Group and the Energizer Foreign Affiliates harmless against, and shall
make payments of, all (A) Foreign Taxes owed by any ▇▇▇▇▇▇▇ Businesses and
Former ▇▇▇▇▇▇▇ Businesses, for any and all Tax periods commencing before, on, or
after the Distribution Date, including any such Foreign Taxes attributable to
the ▇▇▇▇▇▇▇ Businesses or the Former ▇▇▇▇▇▇▇ Businesses conducted by any Joint
Foreign Affiliate prior to the Distribution Date, and including any such
liabilities resulting from an Audit or other adjustment to previously filed Tax
Returns and (B) any Foreign Taxes with respect to the Restructurings. ▇▇▇▇▇▇▇
shall be entitled to any refund of such Foreign Taxes for any Tax period. The
allocation of any such Foreign Taxes between or among the ▇▇▇▇▇▇▇ Businesses,
the Battery Business, any Former ▇▇▇▇▇▇▇ Businesses or any Former Battery
Businesses of a Joint Foreign Affiliate shall be determined in accordance with
the books and records of ▇▇▇▇▇▇▇, any ▇▇▇▇▇▇▇ Foreign Affiliate and any Joint
Foreign Affiliate, as may be appropriate, as though the Battery Business or
Former Battery Business were deemed to have been conducted as the sole business
of such Joint Foreign Affiliate.
(iii) If, in accordance with this Article III 1(b), either ▇▇▇▇▇▇▇
or Energizer is liable for any portion of the Foreign Taxes payable in
connection with any Foreign Tax Return to be filed by the other, the party
responsible for filing such Return (the "Preparer") shall prepare and deliver to
the other party (the "Payor") a copy of such return and any schedules, work
papers and other documentation then available that are relevant to the
preparation of the portion of such return for which the Payor is or may be
liable hereunder not later than the earlier of (A) twenty (20) days prior to the
due date for such Tax Return (including applicable extensions) (the "Due Date"),
or (B) the date the information is available in the normal course of business.
The Preparer shall not file such return until the earlier of either the receipt
of written notice from the Payor indicating the Payor's consent thereto, or five
(5) days prior to the Due Date to ensure timely receipt of the return by the
taxing jurisdiction.
The Payor shall have the option of providing to the Preparer, at
any time at least ten (10) days prior to the Due Date, written instructions as
to how the Payor wants any, or all, of the items for which it may be liable in
full reflected on such Tax Return. Failure by the Payor to give written
instructions at least ten (10) days prior to the Due Date shall constitute a
waiver by the Payor of its right to provide instructions, to the extent such
failure is prejudicial to the Preparer.
The Preparer shall, in preparing such Return, cause the items for
which the Payor is liable hereunder to be reflected in accordance with the
Payor's instructions unless the Preparer determines that such manner of
reporting is in contravention of applicable law. In the absence of having
received instructions from Payor, such items shall be reported in the manner
determined by the Preparer, which is not in contravention of applicable law, and
consistent with historic business practices, as applicable. The Payor shall
timely pay the Preparer an amount equal to the Foreign Taxes for which it is
liable consistent with the Return, and in accordance with Article VI 3 hereof.
(c) Foreign Transfer Taxes. ▇▇▇▇▇▇▇ shall pay or shall reimburse
------------------------
Energizer or an Energizer Foreign Affiliate as appropriate, for payment of any
and all Foreign Taxes upon, or by virtue of, any transfer of property
contemplated under the Plan of Reorganization, including the transfer of shares
of stock of Energizer Foreign Affiliates to Energizer in connection with the
Distribution. Foreign Tax Returns required to be prepared and filed by
Energizer relating to the transfer of shares of stock of Energizer Foreign
Affiliates to Energizer, must be provided to ▇▇▇▇▇▇▇ by Energizer at least ten
(10) days prior to the due date for such Tax Returns so that ▇▇▇▇▇▇▇ may timely
make any payment of Foreign Transfer Taxes due with respect to such Foreign Tax
Return. ▇▇▇▇▇▇▇ shall reimburse Energizer, or an Energizer Foreign Affiliate,
as appropriate, for any such Foreign Transfer Taxes paid, within thirty (30)
days of presentation of a receipt evidencing payment of such Taxes by the
Foreign Affiliate.
(d) Foreign Audits and Controversies.
-----------------------------------
(i) Energizer, at its expense, shall exclusively control and
direct any Audit or Controversy with respect to any Energizer Foreign Affiliate.
▇▇▇▇▇▇▇, however, shall have the right to participate in any such Audit or
Controversy to the extent such Audit or Controversy would impact the Foreign
Taxes or Domestic Taxes for which ▇▇▇▇▇▇▇ is liable in accordance with this
Agreement. Energizer shall not consent to any resolution, compromise or
conclusion of such Audit or Controversy without the written approval of ▇▇▇▇▇▇▇,
which approval shall not be unreasonably withheld. Notwithstanding the
foregoing, in the event Energizer shall compromise or settle any such deficiency
of Foreign Tax without the prior consent of ▇▇▇▇▇▇▇, Energizer shall indemnify
and hold ▇▇▇▇▇▇▇ and any ▇▇▇▇▇▇▇ Foreign Affiliate harmless against any losses,
costs, or damages, including Taxes resulting from such compromise or settlement.
(ii) ▇▇▇▇▇▇▇, at its expense, shall exclusively control and direct
any Tax Audit or Controversy as to any Foreign Tax with respect to any ▇▇▇▇▇▇▇
Foreign Affiliate. Energizer, however, shall have the right to participate in
any such Audit or Controversy to the extent such Audit or Controversy would
impact the Foreign Taxes for which Energizer is liable in accordance with this
Agreement. ▇▇▇▇▇▇▇ shall not consent to any resolution, compromise or
conclusion of such Audit or Controversy without the written approval of
Energizer, which approval shall not be unreasonably withheld. Notwithstanding
the foregoing, in the event ▇▇▇▇▇▇▇ shall compromise or settle any such
deficiency of Foreign Tax without the prior consent of Energizer, ▇▇▇▇▇▇▇ shall
indemnify and hold Energizer and any Energizer Foreign Affiliate harmless
against any losses, costs, or damages, including Taxes resulting from such
compromise or settlement.
(e) Foreign Tax Attributes.
------------------------
Subject to subparagraph (c) above regarding Foreign Transfer Taxes,
any Foreign Tax attribute generated by ▇▇▇▇▇▇▇ or Energizer shall, to the extent
permitted by the applicable law of the Tax jurisdiction in question, remain with
▇▇▇▇▇▇▇ or Energizer, respectively, or the appropriate entity. In any case
where the applicable law of the Tax jurisdiction in question requires such Tax
attribute to be allocated between ▇▇▇▇▇▇▇ and Energizer, such allocation shall
be made as provided by the law of such jurisdiction. In the event the
applicable law of the Tax jurisdiction requires that such Tax Attribute be
allocated between the parties based on a method of allocation agreed to by the
parties, ▇▇▇▇▇▇▇ and Energizer shall apply an allocation method reasonably
agreed to by both parties.
(f) Competent Authority.
--------------------
If, as a result of a Tax Audit for any Tax Period ending prior to the
Distribution Date (a) the IRS proposes a deficiency with respect to ▇▇▇▇▇▇▇ or
any ▇▇▇▇▇▇▇ Domestic Subsidiary or Energizer or any Energizer Domestic
Subsidiary or (b) any foreign Tax authority proposes a deficiency with respect
to any ▇▇▇▇▇▇▇ Foreign Affiliate or Energizer Foreign Affiliate, in either case
attributable to a proposed adjustment in transfer prices with respect to any of
the foregoing entities, and such adjustment, if sustained, would result in
liability for double Domestic or Foreign Taxes to ▇▇▇▇▇▇▇ or Energizer, to the
extent available under applicable tax treaties and the procedures applied by the
IRS and/or the foreign tax authority, ▇▇▇▇▇▇▇ or Energizer, depending on which
party would be subject to such double taxation, decides to request "competent
authority" (within the meaning of Rev. Proc. 96-13, 1996-1 C.B. 616) assistance
of the appropriate Tax authority or its equivalent ("Competent Authority"), then
the following provisions shall apply: The party initiating the Competent
Authority process, at its expense, shall diligently pursue such Competent
Authority assistance, including without limitation, filing any required amended
Tax Return, in connection with any such Tax Audit and complying with the
applicable procedures of such Competent Authority process. To the extent that
▇▇▇▇▇▇▇, as a result of such Competent Authority process, receives a refund of
double Foreign Taxes relating to a Tax Audit of Domestic Taxes of Energizer for
which ▇▇▇▇▇▇▇ is or was liable under this Agreement or utilizes the benefit of
any overpayment of such Foreign Taxes, ▇▇▇▇▇▇▇ shall retain such refund or
utilize the benefit of any such overpayment of Foreign Taxes and to the extent
that Energizer, as a result of such Competent Authority process, receives a
refund of double Foreign Taxes relating to a Tax Audit of Domestic Taxes of
Energizer for which ▇▇▇▇▇▇▇ is or was liable under this Agreement or utilizes
the benefit of such overpayment, Energizer shall pay an amount equal to such
refund or overpayment to ▇▇▇▇▇▇▇ . To the extent that ▇▇▇▇▇▇▇, as a result of
such Competent Authority process, receives a refund of double Domestic Taxes
relating to a Tax Audit of Foreign Taxes of Energizer for which Energizer is or
was liable under this Agreement or utilizes the benefit of any overpayment of
such Domestic Taxes, ▇▇▇▇▇▇▇ shall pay an amount equal to such refund or
overpayment to Energizer, and, to the extent that Energizer, as a result of such
Competent Authority process, receives a refund of such double Domestic Taxes
relating to a Tax Audit of Foreign Taxes of Energizer for which Energizer is or
was liable under this Agreement or utilizes the benefit of any overpayment of
such Domestic Taxes, Energizer shall retain such refund or utilize the benefit
of such overpayment.
(g) Reimbursement of Other Tax Benefits.
---------------------------------------
Energizer shall reimburse ▇▇▇▇▇▇▇ to the extent of Foreign Tax
benefits derived by any member of the Energizer Group, for payments made by
▇▇▇▇▇▇▇ to third parties on or after the Distribution Date, which result in a
Tax deduction to Energizer or an Energizer Foreign Affiliate ("▇▇▇▇▇▇▇
Payments"), provided such ▇▇▇▇▇▇▇ Payments (a) are not claimed as a deduction by
▇▇▇▇▇▇▇ for Foreign Tax purposes, (b) are deductible on a Foreign Tax Return of
the Energizer Group, and (c) result in a reduction of Foreign Taxes of
Energizer, the Energizer Group, or any Energizer Foreign Affiliate. The amount
of the payment required hereunder for any taxable period of Energizer shall be
equal to the actual diminution of any Foreign Taxes by reason of any ▇▇▇▇▇▇▇
Payments. Provided, however, if for any taxable period, (X) Energizer or
▇▇▇▇▇▇▇ files an amended Foreign Tax Return (or files a carryback or
carryforward claim relating to a net operating loss), or (Y) the Foreign Tax
authority adjusts any item on any Energizer or ▇▇▇▇▇▇▇ Foreign Tax Return, the
amount of the payment required under this paragraph shall be recomputed (either
at the time of the filing of the amended return, or carryover or carryback
claim, or at the time of the final determination of the adjustment) to reflect
such amended return, claim, or adjustment, and, at such time, either (I) ▇▇▇▇▇▇▇
shall repay any overpayment by Energizer under this paragraph to Energizer, or
(II) Energizer shall pay any underpayment under this paragraph to ▇▇▇▇▇▇▇.
ARTICLE IV. NEGOTIATION
For the purposes of this Agreement, all computations or recomputations of
Tax liability, and all computations or recomputations of any amount or any
payment (including, but not limited to, computations of the amount of the tax
liability, any loss or credit or deduction, statutory tax rate for a year,
interest payments, and adjustments) and all determinations of payments or
repayments, or determination of any other nature required to be made pursuant to
this Agreement, shall be based on the assumptions and conclusions of the party
making the computations. If either ▇▇▇▇▇▇▇ or Energizer objects thereto in
writing, addressed to the other party, the provisions of Article XI of the Plan
of Reorganization shall be applicable to resolve any issues under this Tax
Sharing Agreement.
ARTICLE V. ENERGIZER POST-DISTRIBUTION TRANSACTIONS
1. Energizer shall, and shall cause each member of the Energizer Group and
each Energizer Foreign Affiliate to comply with each representation and
statement made, or to be made, to the IRS in connection with any ruling
obtained, or to be obtained, by ▇▇▇▇▇▇▇ from the IRS with respect to any
transaction contemplated by the Plan of Reorganization. Neither Energizer nor
any member of the Energizer Group shall for a period of thirty (30) months, with
respect to transactions described in subparagraphs I, III, IV, V, and VI, below;
and twenty-four months with respect to the transaction described in subparagraph
II below, following the Distribution Date engage in any of the following
transactions, unless, in the sole discretion of ▇▇▇▇▇▇▇, either (a) an opinion
in form and substance satisfactory to ▇▇▇▇▇▇▇ is obtained from counsel to
Energizer, the selection of which counsel is agreed to by ▇▇▇▇▇▇▇ or (b) a
supplemental ruling is obtained from the IRS, in either case to the effect that
such transactions would not adversely affect the tax consequences of the
transactions contemplated by the Plan of Reorganization to (i) ▇▇▇▇▇▇▇ or any
member of the ▇▇▇▇▇▇▇ Group, (ii) Energizer or any member of the Energizer
Group, or (iii) the ▇▇▇▇▇▇▇ shareholders. The transactions subject to this
provision include: (I) making a material disposition (including transfers from
one member of the Energizer Group to another member of the Energizer Group), by
means of a sale or exchange of assets or shares of stock, a distribution to
shareholders, or otherwise, of any of its assets (other than the transactions
contemplated by the Plan of Reorganization) except in the ordinary course of
business; (II) repurchasing any Energizer Shares, unless such repurchase
satisfies the requirements of Section 4.05(1)(b) of Revenue Procedure 96-30;
(III) issuing capital stock of Energizer (or a successor to Energizer), whether
incident to a stock offering, an acquisition transaction, or otherwise, or
participating in a transaction in which shareholders of Energizer (or a
successor to Energizer) exchange or otherwise dispose of their stock in
Energizer (or a successor to Energizer), if the aggregate amount of shares
issued or disposed of in any such transactions represents a "fifty percent (50%)
or greater interest" in the total issued and outstanding stock of Energizer (or
a successor to Energizer) within the meaning of section 355(d)(4) of the Code;
provided that Energizer further agrees to notify ▇▇▇▇▇▇▇ in advance of any such
transactions that would result in the issuance or disposition of an aggregate
amount of shares representing a ten percent (10%) or greater interest in the
total issued and outstanding stock of Energizer; (IV) liquidating or merging
with any other corporation (including a member of the Energizer Group); (V)
ceasing to engage in the active conduct of a trade or business within the
meaning of Section 355(b)(2) of the Code; or (VI) any other transaction, action,
or event which in any material respect is inconsistent with the representations
and statements set forth on Schedule 8.01(b)(vi) to the Agreement and Plan of
Reorganization. Energizer hereby represents that neither Energizer nor any
member of the Energizer Group has any present intention to undertake any of the
transactions set forth above, except as set forth in the ruling request
submitted to the IRS with respect to the Distribution.
2. ▇▇▇▇▇▇▇ shall, and shall cause each member of the ▇▇▇▇▇▇▇ Group and each
▇▇▇▇▇▇▇ Foreign Affiliate to refrain from taking any action which would
adversely impact any ruling obtained, or to be obtained, by ▇▇▇▇▇▇▇ from the IRS
with respect to any transaction contemplated by the Agreement of Reorganization.
ARTICLE VI. MISCELLANEOUS PROVISIONS
1. Mutual Cooperation. ▇▇▇▇▇▇▇ and Energizer shall, and shall cause each of
------------------
their Domestic Subsidiaries and Foreign Affiliates to, cooperate with each other
in filing any Tax Returns or consents contemplated by this Agreement and to take
such actions as the other party may reasonably request, including but not
limited to the following: (a) provide data for the preparation of Tax Returns,
including schedules, and make elections that may be required by the other party;
(b) provide required documents and data and cooperate in Audits or
investigations of Tax Returns and execute appropriate powers of attorney in
favor of the other party and/or its agents; (c) file protests or otherwise
contest proposed or asserted tax deficiencies, including filing petitions for
redetermination or prosecuting actions for refund in court, and pursuing the
appeal of such actions; (d) take any of the actions of the type described in
Regulation Section 1.1502-77(a) of the Code (describing the scope of the agency
of the common parent of a group of affiliated corporations); and (v) file
requests for the extension of time within which to file Tax Returns.
2. Maintenance of Books and Records. Until the applicable statute of
------------------------------------
limitations (including periods of waiver), or statute of similar import, has
expired in accordance with laws governing Domestic or Foreign Taxes and Tax
Returns, ▇▇▇▇▇▇▇ and Energizer shall, and shall cause each Domestic Subsidiary
and Foreign Affiliate to, retain all Tax workpapers and related materials
including applicable financial reports in its possession and under its control
used in the preparation of any Tax Return for Tax periods commencing prior to or
on the Distribution Date. ▇▇▇▇▇▇▇ and Energizer will notify the other party
sixty (60) days prior to disposing of any of the aforementioned records and will
deliver to the other party, at the other party's expense, any such records
requested by the other party. In addition, Energizer shall generate and retain
for IRS audit use (i) all necessary electronic data processing ("EDP") records
in accordance with existing agreements with the IRS, and (ii) any necessary
computer hardware or source codes needed to process EDP records for the IRS. As
requested, from time to time, by Energizer or ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Energizer
shall each provide the other with timely access to, and right to copy, any
records and other information reasonably requested concerning tax matters
affecting Energizer and ▇▇▇▇▇▇▇ and the cooperation of their respective
accountants and auditors, including, without limitation, information concerning
stock and asset bases, holding period, earnings and profits, intercompany
transactions, balance sheet and income statement tax provisions, reserves and
deferred tax accounts. In no event shall such access to available information
be provided more than thirty (30) days after written request therefor.
3. Payment. Failure to make any payment required under this Agreement will
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result in the accrual of interest on such amount due. Any interest payment
required hereunder shall be calculated from the same date and at the rate used
by the IRS, any foreign, state, or local tax authority, as applicable, in
computing the interest payable by it or to it. Unless otherwise provided, all
payments required to be made under this Agreement from one party to another
shall be made within thirty (30) days after the event which gives rise to the
requirement for payment occurs. Any payments made pursuant to this Agreement
are to be adjusted in the event that future events or new information would, had
they occurred or been known at the time of a payment, have altered the amount of
such payment, so that at the time of such future events or knowledge of such
information, appropriate adjustments shall be made retroactively to include the
consequences of such event or information in the original computation.
4. Treatment of Intercompany Payments. To the extent that any payments are
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made between Energizer and ▇▇▇▇▇▇▇ pursuant to this Agreement, for purposes of
Domestic Tax treatment, such payments to ▇▇▇▇▇▇▇ by Energizer shall be treated
as a distribution under Section 301 of the Code by Energizer to ▇▇▇▇▇▇▇ at a
time when the two corporations filed a consolidated federal income tax return,
and such payments by ▇▇▇▇▇▇▇ to Energizer shall be treated as a nontaxable
contribution by ▇▇▇▇▇▇▇ to the capital of Energizer immediately prior to the
Distribution Date. In any event, any payments made between Energizer and ▇▇▇▇▇▇▇
pursuant to this Agreement shall be subject to any required withholding of Taxes
and shall be made net of any such Taxes required to be withheld on such
payments, provided, however, to the extent feasible, such payments shall be
structured so as to be free of withholding Taxes or to minimize withholding
Taxes. Whenever any such withholding Taxes are payable by or on behalf of the
payor, as promptly as possible thereafter, the payor shall send to the payee a
certified copy or an original official receipt received by the payor showing
payment thereof.
5. Energizer Domestic Tax Accruals. Prior to the Distribution Date,
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Energizer will transfer to the books of ▇▇▇▇▇▇▇ any Domestic Tax accrual
balances (credits) recorded on any books of any Energizer Domestic Subsidiary as
of the Distribution Date. Prior to the Distribution Date, ▇▇▇▇▇▇▇ will transfer
to the books of Energizer any Domestic Tax accrual balances (credits) recorded
on any books of ▇▇▇▇▇▇▇ as of the Distribution Date relating to Foreign Taxes
for which Energizer is, or may become, liable under this Agreement.
6. Tax Sharing Agreements. Any other tax sharing or tax allocation or
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similar agreement or arrangement in effect between Energizer and ▇▇▇▇▇▇▇,
whether oral or in writing, shall terminate as between Energizer and ▇▇▇▇▇▇▇ on
the Distribution Date and, notwithstanding anything in such agreement to the
contrary, any rights or obligations of Energizer and ▇▇▇▇▇▇▇ under any such
agreement or arrangement shall be superseded by the terms of this Agreement.
7. No Double Tax Benefit. Anything in this Agreement to the contrary
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notwithstanding, neither ▇▇▇▇▇▇▇ nor Energizer shall be entitled to any double
benefit both (i) by reason of any payment otherwise required to be made between
the parties under this Agreement and (ii) any Tax benefit or avoidance of any
Tax detriment under applicable Domestic or Foreign Tax law, including, without
limitation, (x) being required to make any payment to the other for any loss of
Tax benefit under this Agreement to the extent that such party is entitled to,
and actually receives, such Tax benefit under applicable Tax law or (y) entitled
to receive any payment under this Agreement for any apparent Tax detriment to
the extent such party is entitled to, and actually is able to, avoid such Tax
detriment, under such Tax law.
8. Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State of Missouri, and the United States of
America, notwithstanding any conflict of law provision to the contrary, and
shall be binding on the successors and assigns of the parties hereto.
9. Entire Agreement. Unless otherwise specified, this Agreement contains
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the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior written agreements, memoranda,
negotiations and oral understandings, if any, and may not be amended,
supplemented or discharged except by performance or by an instrument in writing
signed by all of the parties hereto.
10. Controlling Agreement. In the case of a conflict between the Plan of
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Reorganization and this Agreement, this Agreement shall control.
Notwithstanding anything in this Agreement to the contrary any rights or
obligations with respect to Taxes affecting the ▇▇▇▇▇▇▇ Purina Charitable Trust
shall be controlled by Section 2.07 of the Agreement and Plan of Reorganization.
11. Counterpart. This Agreement may be executed simultaneously in two or
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more counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
12. Intellectual Property. Notwithstanding anything in this Agreement to the
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contrary, ▇▇▇▇▇▇▇ shall not be liable for any Taxes resulting from the transfer
or registration of any intellectual property for which ▇▇▇▇▇▇▇ does not bear
responsibility for costs under the Intellectual Property Agreement as defined in
Section 5.04 of the Plan of Reorganization between ▇▇▇▇▇▇▇ and Energizer.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
▇▇▇▇▇▇▇ PURINA COMPANY
BY /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President Chief Financial Officer
and Treasurer
ENERGIZER HOLDINGS, INC.
BY /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and General Counsel
