EXHIBIT 10.11
TAX INDEMNIFICATION AGREEMENT
This TAX INDEMNIFICATION AGREEMENT (the "Agreement") is entered into
as of May _____, 1998 between MicroStrategy Incorporated (the "Company") and the
persons listed on Schedule A attached hereto (individually a "Stockholder" and
collectively the "Stockholders"). Capitalized terms not otherwise defined have
the meanings ascribed to them in Section 1.1.
WHEREAS, the Company and the Stockholders have entered into this
Agreement as a condition to the Public Offering;
WHEREAS, the Company has been an "S corporation" (as defined in
Section 1361(a)(1) of the Code for federal tax purposes since January 1, 1992;
WHEREAS, the Company and the Stockholders plan to terminate the
Company's S corporation status prior to the completion of the Public Offering,
and as a result the Company will be a "C corporation" (as defined in Section
1361(a)(2) of the Code) beginning on the Termination Date; and
WHEREAS, the Company and the Stockholders wish to terminate this
Agreement such that it has no effect should the Public Offering not occur;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I.
DEFINITIONS
1.1. Definitions. The following terms, as used herein, have the
following meanings:
"Adjustment Amount" means the net increase in taxable income of one or
more of the Stockholders or the Company based on a Final Determination and which
gives rise to a payment pursuant to Section 3.3 or 3.4 hereof.
"Affected Stockholder" means a Stockholder whose tax returns are
adjusted in a manner which gives rise to an obligation of the Company pursuant
to Section 3.3 hereof.
"Blended Rate" means a percentage which equals the sum of the maximum
marginal federal and state individual income tax rates for an individual
residing in Virginia (after giving effect to the full deductibility of state
income taxes for federal income tax purposes) in effect for the year of the
adjustment to a tax return of the Company or such Stockholder that gives rise to
a correlative adjustment to a tax return of such Stockholder or the Company,
respectively. For example, if an adjustment results in an amount due from the
Stockholders hereunder, the year of the Company's return that was adjusted shall
determine the Blended Rate to be used in computing the amount due.
"Closing Date" means the date on which the Public Offering closes.
"Code" means the Internal Revenue Code of 1986, as amended.
"C Short Year" means that portion of the S Termination Year of the
Company beginning on the Termination Date and ending on the last day of the S
Termination Year.
"C Taxable Year" means any taxable year (or portion thereof) of the
Company during which it is a C corporation, including the C Short Year.
"Final Determination" means the final resolution of any income tax
liability (including all related interest and penalties) for a taxable period.
A Final Determination shall result from the first to occur of:
(i) the expiration of 30 days after IRS acceptance of a Waiver
of Restrictions on Assessment and Collection of Deficiency in Tax and
Acceptance of Overassessment on Federal Revenue Form 870 or 870-AD (or
any successor comparable form or the expiration of a comparable period
with respect to any comparable agreement or form under the laws of
other jurisdictions), unless, within such period, the taxpayer gives
notice to the other party of the taxpayer's intention to attempt to
recover all or part of any amount paid pursuant to the Waiver by the
filing of a timely claim for refund;
(ii) a decision, judgment, decree, or other order by a court of
competent jurisdiction that is not subject to further judicial review
(by appeal or otherwise) and has become final;
(iii) the execution of a closing agreement under section 7121 of
the Code or the acceptance by the IRS or its counsel of an offer in
compromise under section 7122 of the Code, or comparable agreements
under the laws of other jurisdictions;
(iv) the expiration of the time for filing a claim for refund or
for instituting suit in respect of a claim for refund disallowed in
whole or part by the IRS or other relevant taxing authority;
(v) any other final disposition of the tax liability for such
period by reason of the expiration of the applicable statute of
limitations; or
(vi) any other event that the parties agree is a final and
irrevocable determination of the liability at issue.
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"Public Offering" means the public offering of the Company's Common
Stock pursuant to the Registration Statement on Form S-1 expected to be
originally filed by the Company with the Securities and Exchange Commission on
December 23, 1997.
"S Short Year" means that portion of the S Termination Year beginning
on the first day of such taxable year and ending on the day immediately
preceding the Termination Date.
"S Taxable Year" means any taxable year (or portion thereof) of the
Company during which the Company was an S corporation, including the S Short
Year.
"S Termination Year" shall mean the fiscal year of the Company that
includes the Termination Date.
"Taxing Authority" means the United States Internal Revenue Service
and any comparable state or foreign taxing authority.
"Termination Date" means the date on which the S corporation status of
the Company will terminate pursuant to Section 1362(d) of the Code.
ARTICLE II.
TERMINATION OF S CORPORATION STATUS AND ALLOCATIONS OF INCOME
2.1. Termination of S Corporation Status. The Company and the
Stockholders shall cause the Company to terminate its S corporation status at
least two days prior to the Closing Date.
2.2. Allocation Election. The Company shall be required to elect to
allocate the items described in Section 1362(e)(2)(A) of the Code pursuant to
Section 1362(e)(3) of the Code under "normal tax accounting rules," and the
Stockholders agree to consent to such election and to provide the Company with
the statement of consent of all Stockholders described in Section 1.1362-6(a)(5)
and Section 1.1362-6(b) of the Treasury Regulations.
ARTICLE III.
OBLIGATIONS
3.1 Liability for Taxes Incurred by Stockholders During the S Short
Year. Each Stockholder covenants and agrees that: (i) the Stockholder will
duly include, in his own federal and state income tax returns, all items of
income, gain, loss, deduction, or credit attributable to the S Short Year in a
manner consistent with the Form 1120S and the schedules thereto (and the
corresponding state income tax forms and schedules) to be filed by the Company
with respect to such period; (ii) such returns shall be filed no later than the
date due (including extensions, if any) for filing such returns; and (iii) each
Stockholder shall pay any and all taxes required to be paid for its taxable year
that includes the S Short Year.
3.2 Liability for Taxes Incurred by the Company During the S Short
Year and
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the C Short Year. The Company covenants and agrees that: (i) the Company shall
be responsible for and shall effect the filing of all federal and state income
tax returns for the Company with respect to the S Short Year and the C Short
Year; (ii) such Company returns shall be accurately prepared and timely filed;
and (iii) the Company shall pay any and all taxes required to be paid by the
Company for the periods covered by such returns as required by applicable law.
3.3. Company's Indemnification of Stockholders for Tax Liabilities.
In the event of an adjustment to one or more tax returns of the Company for an S
Taxable Year based on a Final Determination which results in a net increase in
taxable income of a Stockholder and a corresponding adjustment to one or more
tax returns of the Company for a C Taxable Year based on a Final Determination
which results in a net decrease in taxable income of the Company, the Company
shall pay to any Affected Stockholder an amount equal to the Adjustment Amount
multiplied by the Blended Rate. In addition, provided the Affected Stockholder
originally reported its distributive share of income and other items of the
Company from an S Taxable Year consistently with Schedule K-1 provided to him by
the Company, the Company shall pay to the Affected Stockholder any penalties or
interest actually paid by the Affected Stockholder as a result of the adjustment
to such items giving rise to the Company's liability hereunder. The Company
shall pay the amount due to the Affected Stockholder within thirty (30) business
days after the receipt of notice from the Affected Stockholder that a payment is
due by such party to the appropriate Taxing Authority.
3.4. Stockholders' Indemnification of Company for Tax Liabilities.
(a) Adjustments to Company's Taxable Income. In the event of an
adjustment of one or more tax returns of the Company for a C Taxable Year based
on a Final Determination which results in a net increase in taxable income of
the Company for a C Taxable Year and a corresponding adjustment to one or more
tax returns of the Company for an S Taxable Year based on a Final Determination
which results in a net decrease in taxable income of the Company for the S
Taxable Year, each Stockholder, severally but not jointly and subject to the
limitations contained in Section 3.4(c), agrees to contribute to the capital of
the Company its pro rata share (based upon the relative amount of Company stock
held by such Stockholder during the relevant time period) of an amount equal to
the Adjustment Amount multiplied by the Blended Rate. In addition, subject to
the limitations contained in Section 3.4(c), each Stockholder shall contribute
to the capital of the Company an amount equal to its pro rata share (based upon
the relative amount of Company stock held by such Stockholder during the
relevant time period) of any penalties and interest to be paid by the Company to
any Taxing Authority as a result of such determination.
(b) Adjustments Attributable to Company's S Status. If based on a
Final Determination the Company is deemed to have been a C corporation for
federal, state or local income tax purposes during any period in which it
reported (or intends to report) its taxable income as an S corporation, each
Stockholder, severally but not jointly and subject to the limitations contained
in Section 3.4(c), agrees to contribute to the capital of the Company an amount
equal to its pro rata share (based upon the relative amount of Company stock
held by
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such Stockholder during the relevant time period) of the Adjustment Amount with
respect to such year multiplied by the Blended Rate. Subject to the limitations
contained in Section 3.4(c), the Stockholders, severally but not jointly, shall
hold the Company harmless from its pro rata share (based upon the relative
amount of Company stock held by such Stockholder during the relevant time
period) of any taxes, penalties and interest incurred by the Company
attributable to the period prior to the Termination Date to the extent not
included on the Company's financial statements filed with the Securities and
Exchange Commission on Form S-1 as adjusted for the passage of time through the
Termination Date in accordance with the past custom and practice of the Company
in filing its tax returns.
(c) Limit on Indemnification Amount. Notwithstanding the foregoing
provisions of this Section 3.4, the payments required to be made by any Affected
Stockholder to the Company pursuant to this Section 3.4 shall not exceed the
lesser of (A) the amount of the refund from any Taxing Authority attributable to
the reduction in such Affected Stockholder's tax liability attributable to
adjustments established pursuant to the Final Determination and (B) the amount
of the total distributions to such Stockholder made by the Company from January
1, 1990 through and including the Termination Date. For purposes of this
Section 3.4(c), the amount of the refund shall include refunds or abatements of
taxes, interest on such refunds or abatements, and any other amount actually
received by the Affected Stockholder from the Taxing Authority with respect to
such determination.
(d) Time of Indemnification Payment. The Stockholders shall
contribute to the capital of the Company amounts set forth in this Section 3.4
within thirty (30) business days after the later of (a) the receipt of the
refund from the Taxing Authority attributable to such adjustment or (b) notice
from the Company that a payment is due by the Company to the appropriate Taxing
Authority.
ARTICLE IV.
CONTESTS/COOPERATION
4.1 Contests. Whenever the Stockholders or the Company becomes aware
of an issue which it believes a Final Determination of which could give rise to
payment or indemnification from the other party under Article III, the
Stockholders or the Company (as the case may be) shall promptly give notice of
the issue to the other party. The indemnitor and its representatives, at the
indemnitor's expense, shall be entitled to participate in all conferences,
meetings, or proceedings with the IRS or other taxing authority with respect to
the issue.
The parties agree to consult and cooperate with each other in the
negotiation and settlement or litigation of any adjustment that may give rise to
any payment or an indemnification payment under this Agreement. All decisions
with respect to such negotiation and settlement or litigation shall be made by
the parties after full, good faith consultation or pursuant to the dispute
resolution provisions of Section 4.2.
4.2. Dispute Resolution. If the parties are, after negotiation in
good faith, unable to agree upon the appropriate application of this Agreement,
the controversy shall be settled by the "Big 6" (or equivalent) accounting firm
(the "Accounting Firm") agreed to by the
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Company and the Stockholders. The decision of the Accounting Firm shall be
final, and each of the Company and the Stockholders agree immediately to pay to
the other any amount due under this Agreement pursuant to such decision. The
expenses of the Accounting Firm shall be borne one-half by the Company and one-
half by the Stockholders unless the Accounting Firm specifies otherwise.
Each of the Company and the Stockholders agree that (i) in the event
that any of them receives notice, whether orally or in writing, of any federal,
state, local or foreign tax examinations, claims, settlements, proposed
adjustments or related matters that may affect in any way the liability of a
party under this Agreement, it shall within ten days notify the other parties in
writing thereof (provided that any failure to give such notice shall not reduce
a party's right to indemnification under this Agreement except to the extent of
actual damage incurred by the other parties as a result of such failure), and
(ii) the party or parties (the "Indemnifying party") who would be required to
indemnify the other party or parties (the "Indemnified party") shall be entitled
at its reasonable discretion and sole expense to handle, control and compromise
or settle the defense of any matter which may give rise to a liability under
this Agreement, provided that the Indemnifying Party from time to time provides
assurances reasonably satisfactory to the Indemnified party that (1) the
Indemnifying party is financially capable of pursuing such defense to its
conclusion, and (2) such defense is actually being pursued in a reasonable
manner.
4.3. Cooperation. The parties will make available to one another, as
reasonably requested, and to any taxing authority, all information, records or
documents relating to the liability for taxes covered by this Agreement and will
preserve such information, records or documents until the expiration of any
applicable statute of limitations or extensions thereof. The party requesting
such information shall reimburse the other party for all reasonable out-of-
pocket costs incurred in producing such information.
4.4. Costs. Except to the extent otherwise provided therein, each
party shall bear its own costs in administering this Agreement.
4.5. Interest on Overdue Payments. Any payment pursuant to this
Agreement not made when due under this Agreement shall bear interest at the rate
of 10% per annum until paid.
ARTICLE V.
MISCELLANEOUS
5.1. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
counterparts collectively shall constitute an instrument representing the
Agreement between the parties hereto.
5.2. Construction of Terms. Nothing herein expressed or implied is
intended, or shall be construed, to confer upon or give any person, firm or
corporation, other than the parties hereto or their respective successors and
assigns, any rights or remedies under or by reason of this Agreement.
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5.3. Governing Law. This Agreement and the legal relations between
the parties hereto shall be governed by and construed in accordance with the
substantive laws of the State of Virginia without regard to Virginia choice of
law rules.
5.4. Amendment and Modification. This Agreement may be amended,
modified or supplemented only by a written agreement executed by the parties.
5.5. Assignment. Except by operation of law or in connection with
the sale of all or substantially all the assets of a party, this Agreement shall
not be assignable, in whole or in part, directly or indirectly, by the
Stockholders without the written consent of the Company or by the Company
without the written consent of the Stockholder. Any attempt to assign any rights
or obligations arising under this Agreement without such consent shall be void.
However, the provisions of this Agreement shall be binding upon inure to the
benefit of, and be enforceable by the parties and their respective successors
and permitted assigns.
5.6. Interpretation. The title, article and section headings
contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the parties and shall not in any way affect the meaning
or interpretation of this Agreement.
5.7. Severability. In the event that any one or more of the
provisions of this Agreement shall be held to be illegal, invalid or
unenforceable in any respect, the same shall not in any respect affect the
validity, legality or enforceability of the remainder of this Agreement, and the
parties shall use their best efforts to replace such illegal, invalid or
unenforceable provisions with an enforceable provision approximating, to the
extent possible, the original intent of the parties.
5.8. Entire Agreement. This Agreement embodies the entire agreement
and understanding of the parties hereof in respect to the subject matter
contained herein. There are no representations, promises, warranties,
covenants, or undertakings, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and the understandings
between the parties with respect to such subject matter.
5.9. Further Assurances. Subject to the provisions of this
Agreement, the parties shall acknowledge such other instruments and documents,
and take all other actions, as may be reasonably required in order to effectuate
the purposes of this Agreement.
5.10. Parties in Interest. Except as herein otherwise specifically
provided, nothing in this Agreement expressed or implied is intended to confer
any right or benefit upon any person, firm, or corporation other than the
parties and their respective successors and permitted assigns.
5.11. Waivers, Etc. No failure or delay on the part of the parties
in exercising any power or right under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No modification or waiver of any provision of this Agreement
nor consent
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to any departure by the parties therefrom shall in any event be effective unless
it shall be in writing, and then such waiver or consent shall be effective only
in the specific instance and for the purpose which given.
5.12. Set-off. All payments to be made by any party under this
Agreement shall be made without set-off, counterclaim, or withholding, all of
which are expressly waived.
5.13. Change of Law. If, due to any change in applicable law or
regulations or the interpretation thereof by any court or other governing body
having jurisdiction subsequent to the date of this Agreement, performance of any
provision of this Agreement shall be impracticable or impossible, the parties
shall use their best efforts to find an alternative means to achieve the same or
substantially the same results as are contemplated by such provision.
5.14. Headings. Descriptive headings are for convenience only and
shall not control or affect the meaning of any provision of this Agreement.
5.15. Counterparts. For the convenience of the parties, any number
of counterparts of this Agreement may be executed by the parties and each
executed counterpart shall be an original instrument.
5.16. Notices. All notices provided for in this Agreement shall be
validly given if in writing and delivered personally or sent by registered mail,
postage prepaid
if to the Company, at:
General Counsel
MicroStrategy Incorporated
0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
if to the Stockholders, to:
Xxxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxx Xxxxxx
0000 Xxxxxxx Xxx
Xxxxxx, XX 00000
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Xxxxxx X. Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxx Xxxxxx
0000 Xxxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxxxx, #0
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
00 Xxxx Xxxx Xxxx, Xxxxx
Xxxxxxxxx, XX0 0XX XX
Xxxxxxxxxx Xxxxxxxx
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx
0000 Xxxxxxxxx Xxxxxx, Xxx. X
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
Xxxxxx Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxxx, #0000
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
or to such other addresses as any party may, from time to time, designate in a
written notice given in a like manner. Notice given by mail shall be deemed
delivered five calendar days after the date mailed.
5.17. Termination of Agreement. This Agreement shall terminate and
be void, as if it never had been executed, if the Closing Date shall occur after
March 31, 1998.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MICROSTRATEGY INCORPORATED
By:______________________________________
Xxxx Xxxxx
Chief Financial Officer
STOCKHOLDERS
By:_______________________________________
Xxxxxxx X. Xxxxxx
By:_______________________________________
Xxxxxx X. Xxxxx
By:_______________________________________
Xxxxx X. Xxxxxx
By:_______________________________________
Xxxxx Xxxxxx
By:_______________________________________
Xxxxxxx X. Xxxxx
By:_______________________________________
Xxxxxxx X. Xxxxxxx
By:_______________________________________
Xxxxxxxxx Xxxxxxxx
By:_______________________________________
Xxxxxx X. Xxxxxxxx
By:_______________________________________
Xxxxxxx X. Xxxxxxx
By:_______________________________________
Xxxxxx Xxxxxxxx
By:_______________________________________
Xxxxxx X. Xxxxxxx
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By:_______________________________________
Xxxxx X. Xxxxxxxx
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SCHEDULE A
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxxxx Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
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