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EXHIBIT 10.10
TAX SHARING AGREEMENT
This Tax Sharing Agreement (the "Agreement") is made by and between
Network Associates, Inc. ("NAI") and each of the other entities listed on
Schedule A annexed hereto, as amended from time to time.
WHEREAS, NAI is the parent of an affiliated group of corporations, as
defined in section 1504(a) of the Internal Revenue Code of 1986, as amended (the
"Code");
WHEREAS, NAI, on behalf of its affiliated group, is required to file
consolidated federal income tax returns in accordance with section 1501 of the
Code and may be required to file consolidated federal income tax returns for
subsequent taxable years; and
WHEREAS, the parties wish to provide for the allocation between them of
consolidated federal income tax liability, state and local income tax liability,
and certain related matters.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and agreements contained herein, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the terms set forth below shall be
defined as follows:
(a) "Group" shall mean Parent (as hereinafter defined) and
all other corporations (whether now existing or hereafter formed or acquired)
that are required to join with Parent in filing a consolidated federal income
tax return.
(b) "Group Tax Liability" shall mean the consolidated federal
income tax liability of the Group reported on the Group's consolidated federal
income tax return filed for the taxable year.
(c) "Member" shall mean any corporation that is required to
join with Parent in filing a consolidated federal income tax return, as listed
on Schedule A, as amended from time to time.
(d) "Parent" shall mean (i) NAI, (ii) any successor common
parent corporation described in Treas. Reg. Section 1.1502-75(d)(2)(i) or (ii),
or (iii) any corporation as to which Parent (or a successor corporation
described in clause (ii) hereof) is the "predecessor" within the meaning of
Treas. Reg. Section 1.1502-1(f)(1), if such corporation acquires NAI (or a
successor corporation described in clause (ii) hereof) in a "reverse
acquisition" within the meaning of Treas. Reg. Section 1.1502-75(d)(3).
(e) "Separate Return Tax Liability" shall mean with respect to
any Member for any taxable year the hypothetical federal income tax liability of
such Member determined on a pro forma basis as if such Member had filed its own
separate federal income tax return for such year and
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calculated by (i) taking into account only losses, credits, carryovers of losses
and credits from prior or subsequent years, and other tax attributes of the
Member (determined without reference to the effect of the application of the
consolidated return regulations on the Member's attributes), all of which
attributes are subject to the limitations of the Code that would have been
applicable had the Member filed a separate federal income tax return for all
taxable years relating to the computation, (ii) imposing a tax on the taxable
income of the Member at a rate equal to the rate specified by the Code for the
taxable year under each applicable tax provision (including without limitation
the taxes imposed under Sections 11, 55 and 1201(a) of the Code), without surtax
exemptions, and (iii) employing the methods and principles of accounting,
elections and conventions that are used by the Group. The Separate Return Tax
Liability of a Member shall include any interest or penalties that would have
been shown as due had such Member filed a separate federal income tax return for
the taxable year in accordance with this subparagraph (e).
2. FILING OF RETURNS.
(a) Parent shall, on a timely basis, file or cause to be
filed, consolidated federal income tax returns and estimated tax returns for
each taxable year during the term of this Agreement and shall pay in full any
tax shown as due thereon. Each Member shall execute and file such consents,
elections, and other documentation as may be required or appropriate for the
proper filing of such returns. Each Member shall also maintain such books and
records and provide such information as Parent may request in connection with
the matters contemplated by this Agreement.
(b) Parent shall have the right, in its sole discretion, to
(i) make any elections which are employed in the filing of such returns,
including any elections denominated as such in the Code and choice of methods of
accounting and depreciation; (ii) determine the manner in which such returns
shall be prepared and filed, including without limitation, the manner in which
any item of income, gain, loss, deduction or credit shall be reported; (iii)
contest, compromise or settle any adjustment or deficiency proposed, asserted or
assessed as a result of any audit of any such returns; (iv) file, prosecute,
compromise or settle any claim for refund; and (v) determine whether any refunds
to which the Group may be entitled shall be paid by way of refund or credit
against the federal income tax liability of the Group.
(c) The Group will jointly file state, local and foreign tax
returns on a combined, consolidated, unitary, or other method that Parent
determines in its sole discretion results in a lower overall tax liability for
the Group. In the event any such state or local tax returns are filed, all of
the provisions of this Agreement shall apply to the extent determined by Parent
to the allocation, preparation, filing and payment related to such state and
local taxes and returns and shall be applied as is appropriate in the context of
the applicable state and local tax laws as determined in the sole discretion of
Parent, provided, further, that any benefit realized by the filing of such state
and local returns shall remain with Parent.
3. PAYMENTS.
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For each taxable year of the Group with respect to which a consolidated
federal income tax return is filed, Each Member shall make payments to Parent in
the following manner:
(a) Each Member shall pay to Parent the amount of such
Member's Separate Return Tax Liability not later than five (5) days before the
date on which the Group's consolidated federal income tax return is required to
be filed (taking account of any extensions thereof).
(b) Each Member shall pay to Parent, not later than five (5)
days before the date such Member would be required to make a payment of
estimated federal income taxes were such Member to file a separate federal
income tax return for the taxable year (including any payment due at the time
any extension of time for the filing of such hypothetical return is obtained),
an amount, as determined by Parent in a manner consistent with paragraph 1(e),
equal to the portion of such Member's Separate Return Tax Liability that would
be due were that Member to file a separate federal income tax return for the
taxable year. The Quarterly Estimated Tax Payment shall be determined at the
Parent's sole discretion. Any payments made by a Member to Parent under this
subparagraph (b) with respect to a taxable year shall be applied to reduce the
amount, if any, owing by that Member under subparagraph (a) of this paragraph 3
with respect to such year. Any excess of such payments over the amount
determined under subparagraph (a) of this paragraph 3 for such year shall be
repaid by Parent to that Member not later than forty-five (45) days after the
date on which the Group's federal income tax return is filed or, to the extent
that such excess represents all or a part of a tax refund claimed by the Group,
not later than forty-five (45) days after the receipt of such refund.
4. CHANGES IN TAX LIABILITY.
(a) If with respect to any taxable year (i) the Group files an
amended consolidated federal income tax return reporting a consolidated federal
income tax liability different from the Group Tax Liability, (ii) the Group Tax
Liability or a Member's tax liability is adjusted and such adjustment is part of
a final "determination" as that term is defined in section 1313(a) of the Code,
or (iii) the Group is assessed and pays federal income taxes in excess of the
Group Tax Liability by reason of any of the events specified in section 6213(b)
or (d) of the Code, then the amounts of the payments required under paragraph 3
shall be recomputed, subject to the limitations of subparagraph (c) of this
paragraph 4, to give effect to such amended return, adjustment or assessment, as
the case may be. that Member shall then pay to Parent, or Parent shall then pay
to that Member, as the case may be, any difference between the amounts
determined by such recomputation and the amounts previously paid. Such payments
shall be made no later than (i) in the case of an additional payment of tax by
the Group due as a result of such amended return, adjustment or assessment, the
later of (a) five (5) days before the date on which such additional payment of
tax is due or (b) five (5) days after the date on which Parent notifies of the
amount of payment due from that Member pursuant to this subparagraph (a); or
(ii) where the Group receives a refund arising from such amended return or
adjustment, forty-five (45) days after the receipt of such refund.
(b) If with respect to any taxable year in which the Group
files an amended consolidated federal income tax return reporting a consolidated
federal income tax liability identical to the Group Tax Liability, then the
amounts of the payments required under paragraph 3, subject to the limitations
of subparagraph (c) of this paragraph 4, shall be recomputed to give effect to
such
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amended return. Not later than forty-five (45) days after the filing of such
amended return, the affected Member shall pay to Parent, or Parent shall pay to
that Member, as the case may be, any difference between the amounts determined
by such recomputation and the amounts previously paid.
(c) If with respect to any taxable year a Member realizes a
loss or credit that would be permitted under the Code (taking into account any
election under section 172(b)(3) of the Code) to be carried to one or more
taxable years that precede such taxable year if such Member had filed a separate
federal income tax return for all such taxable years, then the amounts of the
payments required under paragraph 3 for such taxable years shall be recomputed
to give effect to such carryback; provided, however, that, notwithstanding
subparagraphs (a) and (b) of this paragraph 4, no such recomputation shall be
made with respect to any loss or credit carried back to a taxable year beginning
before the date hereof, or, if later, a taxable year in which such Member was
not a Member; provided, further, that no loss or credit that could be carried
back to a taxable year beginning before the date hereof in which such Member was
a Member shall be considered in determining such Member's Separate Return Tax
Liability for any other year. Such Member shall pay to Parent, or Parent shall
pay to such Member, as the case may be, any difference between the amounts
determined by such recomputation and the amounts previously paid not later than
forty-five (45) days after the date on which the Group's federal income tax
return for the taxable year is filed, or to the extent that such difference
represents all or part of a tax refund claimed by the Group, not later than five
(5) days after the receipt of such refund.
(d) The parties recognize that a recomputation under
subparagraphs (a), (b) or (c) of this paragraph 4 of the amounts of the payments
required under paragraph 3 for any taxable year will not necessarily be the
final determination of the amounts of such payments for such year, and the
amounts of such payments may be recomputed more than once.
(e) In the event that a change in the tax liability of the
Group arising from an amended return, adjustment or assessment described in
subparagraph (a) of this paragraph 4 results or will result in the receipt or
payment of interest, or the payment or recovery of penalties in excess of the
aggregate interest or penalties included in determining the aggregate Separate
Return Tax Liability of a Member, such interest or penalties shall be allocated
to such Member as follows: The total amount of such excess interest or penalty
shall be multiplied by a fraction, the denominator of which is the amount of the
change in the Group Tax Liability on which the interest or penalty is computed,
and the numerator of which is the amount of the change in such Member's
allocated tax liability, in both cases with respect to the most recent prior
computation of the Group Tax Liability and such Member's Separate Return Tax
Liability. Such Member shall pay to Parent, or Parent shall pay to such Member,
as the case may be, the excess interest or penalties allocated to such Member
pursuant to this subparagraph 4(e) at the same time the amounts payable pursuant
to subparagraph (a) of this paragraph 4 become payable.
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(f) Except as provided in paragraph 6, payments made pursuant
to subparagraphs (a), (b), (c), (d), or (e) of this paragraph 4 shall not
themselves bear interest.
5. INDEMNIFICATION.
(a) Each Member agrees to indemnify and hold harmless Parent
with respect to any liability for federal income taxes, including any interest
thereon, any additions to such taxes and assessable penalties imposed with
respect thereto (collectively "Taxes") to the extent that Parent's liability for
such Taxes is attributable to the failure of such Member to make the payments
required of it pursuant to paragraphs 3 and 4 of this Agreement or to the
failure of such subsidiary to comply with subparagraph (a) of paragraph 2 of
this Agreement.
(b) Parent agrees to indemnify and hold each Member harmless
with respect to any liability for federal income taxes, including any interest
thereon, any additions to such taxes and assessable penalties imposed with
respect thereto (collectively, "Taxes"), where such liability arises solely by
reason of such Member being severally liable for any taxes of the Group pursuant
to Treas. Reg. Section 1.1502-6; provided, however, that such Member shall not
be entitled to indemnification by Parent pursuant to this paragraph 5 unless
such Member has made all payments required of it pursuant to paragraph 3 and 4
of this Agreement and fully complied with subparagraph (a) of paragraph 2 of
this Agreement.
(c) Payment pursuant to the indemnity provided in this
paragraph 5 shall be made within ten (10) days of notice that a payment
requiring indemnification under this paragraph 5 has been made by the Parent.
6. DEFAULT INTEREST.
Where payment required by this Agreement to be made from one party to
another is not made within the time provided, the amount not timely paid shall
bear interest at the rate established pursuant to section 6621(a)(2) of the
Code.
7. TERMINATION OF AFFILIATION.
(a) In the event that a Member ceases to be included in the
Group but continues to be a corporation subject to federal income tax, this
Agreement, except as provided in paragraphs 5 and 7 of this Agreement, shall
terminate.
(b) Parent and each former Member shall consult and furnish
each other with information concerning the status of any tax audit or tax refund
claim relating to a taxable year in which such Member was a Member and a
consolidated federal income tax return was filed. Parent shall have the right to
make the final determination as to the response of the Group to any audit and
shall have the sole right to control, at its own expense, any contest of any
change proposed and any proposed disallowance of a refund claim by the Internal
Revenue Service through the Appeals Office of the Internal Revenue Service and
the courts in connection with any taxable year for which this Agreement is in
effect.
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(c) Each Member shall reimburse Parent to the extent that such
Member received a payment under this Agreement on account of (or payments made
by it under this Agreement were reduced by) any loss or credit that remains an
attribute of such Member (i.e., the loss or credit was not absorbed by the Group
in calculating the Group Tax Liability).
(d) Payments which would have been required under paragraphs 3
and 4 of this Agreement to or by a Member, were such Member still a Member, with
respect to those taxable years as to which such Member was a Member, shall be so
made in accordance with principles analogous to those set forth in such
paragraphs and at the times set forth therein; provided, however, that no such
payments shall be made on account of any loss or credit realized by a Member in
a year in which such Member was not a Member that may be carried back to a
taxable year in which a Member was a Member.
8. RESOLUTION OF DISPUTES.
Any dispute or ambiguity concerning the amount of any payment provided
for under this Agreement shall be resolved by Parent in a manner consistent with
the principles and procedures set forth in this Agreement. The judgment of
Parent shall be conclusive and binding upon each of the parties to this
Agreement.
9. EFFECTIVE DATE.
This Agreement shall be effective on the effective date of the
registration statement for Member's initial public offering of its common stock,
and shall remain in effect for each taxable year thereafter in which any Member
is included in a consolidated federal income tax return filed by Parent.
10. INFORMATION AND EXPENSES.
Parent is authorized to retain accountants and attorneys for the
purpose of preparing the Group's tax returns provided for herein, and each
Member agrees to pay all the costs incurred by such Member in furnishing
records, documents or information in the form requested by Parent in connection
with the preparation of any such returns. Each Member shall promptly provide
Parent with such records, documents and information as Parent shall request in
connection with the preparation of such returns. Parent shall be authorized to
retain accountants and attorneys for the purpose of preparing any of the refund
claims provided for herein, and of representation in connection with any Member
disputes with the IRS. In cases where the action taken is Member specific or
where any Member has agreed that the action taken is appropriate, such Member"
agrees to pay the costs reasonably allocated to it by Parent of employing such
attorneys and accountants (including associated court costs), and to bear the
costs incurred by it in furnishing records, documents and testimony in
connection with any such matter.
11. MISCELLANEOUS PROVISIONS.
(a) This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter contained herein and
supersedes all prior written, oral or implied understandings, representations
and agreements among the parties with respect thereto. No
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alteration, amendment, or modification of any of the terms of this Agreement
shall be valid unless made by an instrument signed in writing by an authorized
officer of each party.
(b) This Agreement shall be binding upon and inure to the
benefit of each party hereto, its respective successors and assigns.
(c) This Agreement is not intended to benefit any person other
than the parties hereto, each of their respective successors and assigns. No
person not (i) a party or (ii) a party's successor or assign shall be a third
party beneficiary hereof.
(d) This Agreement shall be governed by, interpreted and
enforced in accordance with the laws of the State of California (regardless of
the laws that might be applicable under principles of conflicts of laws).
(e) This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) The descriptive headings of the paragraphs of this
Agreement are inserted for convenience only and shall not constitute a part
hereof.
(g) Any notice or other communication required or permitted
under this Agreement shall be in writing and shall be personally delivered or
sent by certified or registered United States mail, postage prepaid, to the
parties at the following addresses (or at such other address as a party may
specify by notice to the others):
If to Parent:
Network Associates, Inc.
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If to a Member:
See the address set forth on Schedule A
Any such notice or communication shall be effective and be deemed to
have been given as of the dates delivered or mailed, as the case may be;
provided that any notice or communication changing any of the addresses set
forth above shall be effective and deemed to have been given only upon its
receipt.
(h) Where the context so requires, the word "person" shall
include a corporation, firm, partnership or other form of association or entity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date set forth below, with the effective date as to each
Member the date such Member joined the Group.
NETWORK ASSOCIATES, INC.
By: /s/ XXXXXXX X. XXXXX
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Date:
XxXXXX.XXX CORPORATION
By: /s/ XXXXXXX XXXXXXX
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Date:
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SCHEDULE A
LIST AND ADDRESSES OF MEMBER CORPORATIONS
XxXxxx.xxx Corporation
