EXHIBIT 10.11
THIS TAX INDEMNITY AGREEMENT
THIS TAX INDEMNITY AGREEMENT ("Agreement"), dated as of July 1, 1998, is
entered into by and between AEGIS MORTGAGE ACCELERATION CORPORATION (the
"Corporation") and XXXX XXXXXX ("Xxxxxx").
RECITALS
X. Xxxxxx exercised options (the "Options") to purchase 217,647 shares of
Common Stock of the Corporation (the "Option Shares") on March 27, 1998 (the
"Exercise Date"), which Options were awarded to Xxxxxx as compensation for
services. The Options did not qualify for treatment as incentive stock options
under Section 422 of the Internal Revenue Code or any other special tax
treatment.
X. Xxxxxx'x exercise of the Options results in Xxxxxx'x realization of
ordinary income equal to the excess of the fair market value of the Option
Shares on the Exercise Date over the exercise price paid therefor.
C. The Board of Directors of the Corporation has determined that the
Option Shares had a fair market value of $1.00 per share on the Exercise Date
and the Corporation will take this position on its tax returns. The parties
desire that the Corporation indemnify Xxxxxx for any income tax liability he
incurs as a result of the fair market value being in excess of $1.00, subject to
the restrictions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements contained herein
and the services performed by Xxxxxx for the Corporation, the parties agree as
follows:
SECTION 1. INDEMNIFICATION
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1.1 Indemnity.
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(a) General. If Xxxxxx becomes obligated to pay an amount of United States
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federal, state or local income tax, interest, or penalty with respect to the
exercise of the Options or the receipt of Option Shares in excess of the amount
of such tax that Xxxxxx would be obligated to pay if the Option Shares had a
fair market value of $1.00 on the Exercise Date, the Corporation shall pay to
Xxxxxx the amount of such excess taxes, interest, or penalty. In computing the
amount of excess taxes payable by Xxxxxx for purposes of the preceding sentence,
the amount by which Xxxxxx'x federal income tax is reduced as a result of any
deduction Xxxxxx receives for increased state or local income taxes payable
shall be taken into account.
(b) Prior Sale. If Xxxxxx sells the Option Shares for cash prior to the
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time that any indemnity becomes payable hereunder, the Corporation's obligation
to indemnify Xxxxxx under Section 1.1(a) shall be limited to the excess of (i)
the amount of the indemnity calculated under Section 1.1(a) without regard to
this paragraph over (ii) the net decrease in Xxxxxx'x federal, state, and local
income tax liability on such sale as the result of the Option Shares having a
fair market value in excess of $1.00 on the Exercise Date.
(c) Gross Up. Any payment made by the Corporation to Xxxxxx under this
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Section 1.1 shall be increased by an amount such that Xxxxxx receives, on an
after-tax basis, an amount equal to the indemnity otherwise payable.
(d) Payments. Subject to Sections 1.2 and 1.3, payments under this
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Section 1.1 shall be due on the later of (i) 7 days prior to the date on which
Xxxxxx is required to pay the excess tax liability described in Section 1.1(a),
and (ii) 20 days after Xxxxxx notifies the Corporation of such obligation.
1.2 Limitation on Indemnity Payment. The Corporation's total payments to
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Xxxxxx under Section 1.1, including the amount of any gross-up under Section
1.1(c), shall not exceed the net amount by which the federal, state and local
income taxes of the Corporation (or its successors) are actually reduced in any
prior or current year, as a result of both the increased compensation deductions
the Corporation may take by reason of the excess in fair market value of the
Option Shares over $1.00 per share and the deductions the Corporation may take
for any indemnity paid hereunder (including any gross-up). In computing the
actual reduction in the Corporation's tax liability, the Corporation shall take
into account: (i) the Corporation's ability to use any increased compensation
deductions, determined by taking into account any other corporation with which
the Corporation files a consolidated or combined return in the relevant year,
(ii) the fact that the Corporation's deductions against federal taxable income
for state or local income taxes paid may be reduced as a result of increased
compensation deductions against state or local taxable income; (iii) any
increase in the amount of federal, state, or local employment taxes payable by
the Corporation with respect to the Options, the Option Shares, or the indemnity
payment; and (iv) any interest or penalty payable with respect to any increased
employment taxes. If an indemnity becomes payable (but for the provisions of
this Section 1.2), the Corporation agrees that it will make good faith efforts
to claim all reasonably available tax benefits in connection with the Options,
the Option Shares and any indemnity payment, and to make good faith efforts to
timely file returns and other forms, make elections, or take any other
procedural action reasonably necessary to reduce its tax liability. The amount
of any actual reduction for any year shall be finally determined as of the time
that the Corporation files its tax return for such year and shall not be reduced
as a result of future events, including but not limited to any subsequent
adjustment to the Corporation's tax liability for such year, whether as a result
of an audit or otherwise. If any indemnity payment was limited under this
Section 1.2 because the Corporation was unable to use a deduction in any prior
or the current taxable year, and the Corporation becomes able to use the
deduction in a subsequent taxable year, then notwithstanding the first sentence
of this Section 1.2, the Corporation shall pay to Xxxxxx, on the last day of the
year in which the Corporation is able to use the deduction, the amount by which
its taxes are actually reduced in such year.
1.3 Estimate of Limitation. The Corporation shall make payments when due
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under Sections 1.1 and 1.2 based on a good faith estimate of the amount of the
limitation imposed pursuant to Section 1.2. If the actual limitation is later
determined to be higher than such good faith estimate, the Corporation shall
make additional payments to Xxxxxx to the extent required pursuant to Section
1.1. If the actual limitation is determined to be lower than such good faith
estimate, Xxxxxx will return any payments previously made pursuant to Section
1.1 as a result of such incorrect estimate.
SECTION 2. NOTIFICATION; CONTEST RIGHTS
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2.1 Notification. If Xxxxxx receives any notice, assessment, proposed
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assessment, xxxx or any other written notification from any governmental
authority assessing, proposing to assess, or seeking to collect any tax for
which the Corporation is obligated to indemnify under this Agreement or making
any adjustment to the fair market value of the Option Shares, Xxxxxx shall,
within 15 days, send a copy of such notice to the Corporation. Xxxxxx'x failure
to send the Corporation a copy of the notice shall not affect the Corporation's
obligation to pay the indemnity under Section 1 unless Xxxxxx'x failure
materially adversely affects the Corporation's ability to contest the assessment
of an indemnifiable tax under Section 2.2.
2.2 Contest. If the Corporation so requests, Xxxxxx shall contest any
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assessment or proposed assessment by any governmental authority of an
indemnifiable tax. The Corporation shall be responsible for the expenses of any
such contest conducted at the Corporation's request. The Corporation shall be
entitled to control any such contest, provided that it first agrees in writing
to make any indemnification payments required by Section 1.1 as a result of such
assessment, without regard to any limitations contained in Section 1.2. If
allowed under applicable law, the Corporation may contest any indemnifiable tax
in its own name. Neither party may compromise or settle the question of the
fair market value of the Option Shares with any
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governmental authority without prior written consent of the other party, which
consent shall not be unreasonably withheld.
SECTION 3. BINDING EFFECT
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This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the Company and the executors, administrators and
heirs of Xxxxxx.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
first date written above.
XXXX XXXXXX
/s/ Xxxx Xxxxxx
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AEGIS MORTGAGE ACCELERATION CORPORATION
By: /s/ ^^
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