EXHIBIT 10.2
TAX SHARING AGREEMENT
This Agreement dated as of ____________, 2002 is entered into between
Gen-Probe Incorporated, a Delaware corporation ("Gen-Probe"), and Chugai Pharma
USA, LLC, a Delaware limited liability company ("CPUSA").
RECITALS
WHEREAS, CPUSA, prior to its conversion from a corporation into a
limited liability company (it being understood that references herein to CPUSA
shall include references to CPUSA prior to its conversion into a limited
liability company) was a member of the affiliated group of corporations within
the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended
(the "Code") (the "Consolidated Group") of which Gen-Probe is the common parent,
and, prior to the merger of Gen-Probe Holding Company, Inc. ("GHC") into
Gen-Probe, GHC was the common parent; and
WHEREAS, the parties hereto desire to set forth and confirm in this
Agreement certain provisions relating to the allocation of tax liabilities for
years in which CPUSA (prior to its conversion into a limited liability company)
was included in the Consolidated Group ("Consolidated Years").
The parties agree as follows:
1. Filing of Consolidated Returns and Payment of Consolidated Tax
Liability.
For the 2001 taxable year and for the portion of 2002 during which CPUSA
is included in the Consolidated Group, Gen-Probe shall include CPUSA in the
consolidated federal income tax returns it files as the common parent
corporation (or as the successor by merger to the common parent) of the
Consolidated Group (the "Consolidated Returns," which term shall include
consolidated federal income tax returns filed by the Consolidated Group for
years prior to 2001),
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and shall file any other documents and take any other actions necessary or
appropriate to effect the filing of such returns. For the Consolidated Years,
Gen-Probe shall pay the entire federal income tax liability of the Consolidated
Group, and shall indemnify and hold harmless CPUSA against any such liability;
provided, however, that CPUSA shall make payments to Gen-Probe or receive
payments from Gen-Probe as provided in this Agreement in settlement of CPUSA's
share of the federal income tax liability of the Consolidated Group.
2. CPUSA Share of Consolidated Group Liability.
For 2001 and the portion of 2002 in which CPUSA is included in the
Consolidated Group, CPUSA's share of the Consolidated Group's federal income tax
liability (the "CPUSA Separate Return Liability") shall be equal to the product
of (x) the amount of federal income tax liability which CPUSA would have
incurred if it had filed a separate return prepared in a manner consistent with
the manner in which items of income, deduction, gain, loss and credit
attributable to CPUSA ("CPUSA Consolidated Return Items") are reflected in the
Consolidated Return with any deferred intercompany transactions being taken into
account at the time such transactions are actually reflected in the Consolidated
Return and CPUSA's short taxable year resulting from its ceasing to be a member
of the Consolidated Group being treated as its taxable year for this purpose,
multiplied by (y) a fraction, the numerator of which is the actual consolidated
federal income tax liability of the Consolidated Group and the denominator of
which is the sum of the positive liabilities described in clause (x) for each
member of the Consolidated Group; provided that, if the fraction described in
clause (y) is greater than 1, then the CPUSA Separate Return Liability shall be
equal to the amount described in clause (x).
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3. Payment of CPUSA Separate Return Liability.
For 2001 and the portion of 2002 in which CPUSA is included in the
Consolidated Group, CPUSA shall make periodic payments to Gen-Probe in such
amounts as, and on such dates as, CPUSA would have been required to make
estimated federal income tax payments if it had filed a separate return
(treating CPUSA's short taxable year resulting from its ceasing to be a member
of the Consolidated Group as its taxable year for this purpose), and the balance
of the CPUSA Separate Return Liability shall be paid by CPUSA to Gen-Probe on
the date such taxes would be due. The parties acknowledge that CPUSA has
heretofore paid to Gen-Probe $0 with respect to the CPUSA Separate Return
Liability for 2001 and 2002. To the extent that the actual CPUSA Separate Return
Liability (determined in accordance with Section 2 above) exceeds or is less
than the amount theretofore paid by CPUSA, CPUSA or Gen-Probe, as appropriate,
shall pay the difference to the other party within 15 days after the
Consolidated Return is filed.
4. Returns, Audits, Refunds, Litigation, and Adjustments.
(a) Returns. Except as otherwise provided herein, Gen-Probe shall have
exclusive and sole responsibility for the preparation and filing of the
Consolidated Returns and any other returns, amended returns and other documents
or statements required to be filed with the Internal Revenue Service (the "IRS")
in connection with the determination of the federal income tax liability of the
Consolidated Group. Gen-Probe shall provide CPUSA with copies of the relevant
portions of all such returns, documents and statements which are related to the
items of income, deduction, gain, loss and credit of CPUSA promptly upon filing
thereof. To enable Gen-Probe to prepare the returns, CPUSA shall timely provide
Gen-Probe with whatever information Gen-Probe reasonably requests. Appropriate
personnel of Gen-Probe responsible for the preparation
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of the Consolidated Return shall be available upon reasonable request to meet
with appropriate personnel of CPUSA to discuss all aspects of the Consolidated
Return relating to CPUSA Consolidated Return Items and upon request will furnish
or make available for inspection any and all documents relating to CPUSA
Consolidated Return Items used in preparation of Consolidated Returns (or
amendments thereof).
(b) Audits; Litigations. Except as otherwise provided herein, Gen-Probe
will have exclusive and sole responsibility and control with respect to the
conduct of any audit or examinations of the returns filed by the Consolidated
Group and any litigation with respect thereto, provided, however, that Gen-Probe
may not settle any such audit, examination or litigation without CPUSA's consent
(which shall not be unreasonably withheld) if such settlement may adversely
affect CPUSA's rights to receive or liability for payments pursuant to this
Agreement. Gen-Probe shall promptly notify CPUSA of any issues involving CPUSA
Consolidated Return Items which arise in the course of an audit or examination
of a Consolidated Return of which Gen-Probe has knowledge (including any
proposed adjustments that develop during the course of an IRS audit or
examination). Thereafter, in the course of any administrative or judicial
proceeding, Gen-Probe shall keep CPUSA informed of any material developments in
any such proceeding to the extent such developments concern CPUSA Consolidated
Return Items, and CPUSA shall provide any information reasonably requested by
Gen-Probe in connection therewith.
(c) Expenses. CPUSA shall reimburse Gen-Probe for all expenses
(including, without limitation, legal and accounting fees) incurred by Gen-Probe
in the course of proceedings described in paragraph (b) of this Section 4 to the
extent such expenses are reasonably attributable to CPUSA Consolidated Return
Items.
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(d) Payments. To the extent that any audit, litigation, or claim for
refund with respect to a Consolidated Return results in an additional payment of
federal income tax by the Consolidated Group (including any payment of tax made
preliminary to commencing a refund claim or litigation) or receipt of a refund
of tax or realization of a reduction in federal income tax liability by the
Consolidated Group due to adjustment of the treatment of any CPUSA Consolidated
Return Item, CPUSA shall pay to Gen-Probe or Gen-Probe shall pay to CPUSA, as
appropriate, an amount equal to the additional (or lesser) amount which CPUSA
would have been required to pay Gen-Probe or Gen-Probe would have been required
to pay CPUSA pursuant to Section 3 of this Agreement if the CPUSA Separate
Return Liability were adjusted in a manner consistent with the actual adjustment
of the CPUSA Consolidated Return Items. In addition, CPUSA shall pay to
Gen-Probe, or Gen-Probe shall pay to CPUSA, an amount equal to any interest,
penalties, or additions to tax received or paid by the Consolidated Group with
respect to the adjustment of the CPUSA Consolidated Return Items. Any payment
pursuant to this Section 4(d) shall be made within 15 days after actual payment
of additional tax or receipt of a refund or realization of a reduction in
federal income tax liability by the Consolidated Group or CPUSA, or if there is
no actual payment of tax, receipt of refund, or realization of a reduction in
federal income tax liability, within 15 days after final agreement by Gen-Probe
with the IRS on the adjustment.
(e) Applicability with respect to All Combined Consolidated Returns. The
provisions of Section 4(b), (c) and (d) above shall apply to Consolidated
Returns and CPUSA Consolidated Return Items for all taxable years in which CPUSA
is includable in the Consolidated Group, including taxable years prior to 2001.
All determinations with respect to taxable years prior to 2001 shall be made as
if Sections 2 and 3 of this Agreement had applied to such years.
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(f) Tax on Interest on Refunds. Gen-Probe and CPUSA agree that CPUSA
shall be liable for any federal, state, and local income tax imposed as a result
of receipt or accrual of interest on federal income tax refunds with respect to
which CPUSA is entitled to payment pursuant to this Agreement. CPUSA shall
indemnify and hold harmless Gen-Probe from and against any federal, state, or
local income tax imposed with respect to the receipt or accrual of any such
interest.
5. Consolidated and/or Combined State and Local Income Tax Returns.
For any taxable year with respect to which CPUSA may be included in any
consolidated and/or combined state or local income tax returns, Gen-Probe may
include CPUSA in such returns and the provisions of this Agreement shall apply
with equal force and effect to such state and local returns.
6. Verification.
All amounts due pursuant to this Agreement from CPUSA to Gen-Probe or
from Gen-Probe to CPUSA shall be calculated by Gen-Probe; provided, however,
that, if CPUSA so requests, such calculations shall be verified by the
independent certified public accountants responsible for the certification of
Gen-Probe's published financial statements, at CPUSA's cost and expense, and the
results of such verification shall be binding on the parties hereto.
7. Effect of Conversion of LLC into a Limited Liability Company
For purposes of this Agreement, CPUSA shall be treated as if it were a
corporation at all times up to and including the time of the sale by GHC of the
ownership interest in CPUSA (which was treated for federal income tax purposes
as a sale of all of CPUSA's assets subject to all of its liabilities) to Chugai
USA, Inc., notwithstanding the fact that it became a disregarded entity for
federal income tax purposes as a result of its conversion into a limited
liability
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company; provided, however, that the sale shall be treated for purposes of this
Agreement in accordance with its actual federal income tax treatment as a sale
by GHC of CPUSA's assets.
8. Confidentiality.
Gen-Probe and CPUSA agree that any information furnished one another
pursuant to this Agreement is confidential and, except as and to the extent
required during the course of an audit or litigation, shall not be disclosed to
other persons.
9. Successors.
This Agreement shall be binding upon and inure to the benefit of any
successor to any of the parties, by merger, acquisition of assets or otherwise,
to the same extent as if the successor had been an original party to this
Agreement.
10. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the principles of
conflicts of laws thereof.
11. Headings.
The headings in this Agreement are for convenience only and shall not be
deemed for any purpose to constitute a part of or to affect the interpretation
of this Agreement.
12. Counterparts.
This Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one counterpart.
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13. Notice.
All notices, claims, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
if and when delivered or mailed (registered or certified mail, postage prepaid,
return receipt requested), as follows:
(a) If to Gen-Probe:
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
(b) If to CPUSA:
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: [___________]
Fax: (858) [_______]
or to such other person or address as the party to whom the communication is to
be given may have previously indicated to the other party in writing.
14. Severability.
If any provision of this Agreement is held to be unenforceable for any
reason, it shall be adjusted rather than voided, if possible, in order to
achieve the intent of the parties to the maximum extent practicable. In any
event, all other provisions of this Agreement shall be deemed valid, binding and
enforceable to their full extent.
15. Effect on Prior Agreements.
This Agreement supersedes any prior agreements between CPUSA and
Gen-Probe with respect to liability for federal or state income taxes.
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IN WITNESS WHEREOF, each of the parties to this Agreement has caused
this Agreement to be executed by its duly authorized officer as of the date
first above written.
GEN-PROBE INCORPORATED
BY:
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TITLE:
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CHUGAI PHARMA USA, LLC
BY:
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TITLE:
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