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EXHIBIT 10.2
TAX MATTERS AGREEMENT
THIS TAX MATTERS AGREEMENT ("Agreement") dated as of July 19, 1999 is
entered into by SHOPKO STORES, INC., a Wisconsin corporation ("ShopKo") and
PROVANTAGE HEALTH SERVICES, INC., a Delaware corporation ("ProVantage").
RECITALS
WHEREAS, ProVantage is currently a wholly-owned indirect subsidiary of
ShopKo and the parties anticipate that a portion of the authorized common stock
of ProVantage may be issued and sold to others; and
WHEREAS, ProVantage currently participates in the consolidated tax returns
of ShopKo, and ProVantage and ShopKo desire to enter into an agreement relating
to certain tax matters after the Distribution Date.
NOW, THEREFORE, the parties hereto agree as follows:
1. Effectiveness. This Agreement shall become effective on the Distribution
Date.
2. Definitions. As used in this Agreement, capitalized terms shall have the
following meanings.
Action: any action, claim, suit, arbitration, inquiry, proceeding or
investigation by or before any court, any governmental or other regulatory or
administrative agency or commission or any arbitration tribunal.
Affiliate: with respect to any specified person, a person that, directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, such specified person; provided, however, that
for purposes of this Agreement (i) Affiliates of ProVantage shall not be deemed
to include ShopKo or any of its subsidiaries other than ProVantage and any of
ProVantage's subsidiaries, and (ii) Affiliates of ShopKo shall not be deemed to
include ProVantage or any of its subsidiaries.
Code: the Internal Revenue Code of 1986, as amended.
Distribution Date: The date of the completion of the initial public
offering of the stock of ProVantage.
Taxes: any federal, state, local or foreign income, gross receipts,
profits, franchise or other tax computed in whole or in part by reference to
gross or net income, or based on capital, and any interest, penalties or
additions to tax relating thereto.
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3. Tax Indemnification and Cooperation.
(a) Indemnification for Periods Ending on or Before the Distribution Date.
ShopKo agrees to indemnify and hold harmless ProVantage from and against any
liability for (i) Taxes attributable to ProVantage for tax periods ending on or
before the Distribution Date, subject to the limitation of Section 3(b) below,
and (ii) Taxes for any period attributable to other members of an affiliated
group (as defined in Section 1504(a) of the Code or any analogous provision of
state or local law) to which ProVantage has belonged at any time on or before
the Distribution Date. For purposes of this Section 3, "ProVantage" shall mean
ProVantage and all of its subsidiaries eligible to be included in a consolidated
federal income tax return filed by it as the common parent.
(b) Payment for Subsequent Adjustments. To the extent that an adjustment is
made by a taxing authority to any Tax item of ProVantage for any tax period
ending after the Distribution Date and, as a result of such adjustment, a
correlative adjustment is made to any Tax item of ShopKo's affiliated group for
any tax period ending on or before the Distribution Date that results in an
increase in the Taxes due for such period, ShopKo shall not be required to pay
or to indemnify ProVantage from or against any such increase in Taxes, but
ProVantage shall pay and indemnify ShopKo from and against any such increase in
Taxes for which ShopKo is liable.
(c) Tax Return Filing Responsibility for Periods Ending On or Before the
Distribution Date. ShopKo shall file (or shall cause to be filed) all tax
returns of ProVantage for tax periods ending on or before the Distribution Date.
ShopKo shall, to the extent permissible, include (or cause to be included) the
results of the operations of ProVantage in ShopKo's consolidated federal tax
return and in any other consolidated, unitary, or combined tax return for tax
periods ending on or before the Distribution Date and shall pay all Taxes due
for such periods with respect to ProVantage.
(d) Allocation of Income for Year in which Distribution Date Occurs.
ShopKo, in its absolute discretion, shall either (i) cause ProVantage to close
its permanent books and records (including work papers) as of the Distribution
Date, in accordance with Treasury Regulations (S)1.1502-76(b)(4)(i), in order to
permit ProVantage's taxable income for the taxable period ending on the
Distribution Date to be reported and determined on the basis of income shown on
its permanent books and records (including work papers) or (ii) allocate items
of income or deduction between tax periods ending on or before the Distribution
Date and tax periods beginning after the Distribution Date in accordance with
Treasury Regulations (S)1.1502-76(b)(4)(ii).
(e) Audits for Periods Ending On or Before the Distribution Date. In the
event that any taxing authority conducts an audit to determine the amount of any
tax for any tax period ending on or before the Distribution Date or asserts any
tax liability not reflected on the applicable return as prepared by ShopKo,
ShopKo shall have the exclusive authority to direct, compromise or contest such
audit or asserted tax liability as it shall in its sole discretion deem proper,
and shall pay all Tax liability and expenses arising out of the compromise or
contest of such audit, unless ShopKo is not liable for an additional Tax
liability pursuant to Section 3(b) hereof. Notwithstanding the foregoing, ShopKo
shall give ProVantage written notice of any adjustment
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proposed by a taxing authority or otherwise arising during an audit for which
ShopKo believes that ProVantage may be liable under Section 3(b) hereof, and if,
within thirty (30) days of receiving such notice, ProVantage agrees in a writing
delivered to ShopKo that ProVantage is liable pursuant to Section 3(b) hereof
for any additional Tax liability that would result from an adjustment, ShopKo
shall not without the prior written consent of ProVantage compromise or agree to
any such adjustment; provided that, if ProVantage withholds its consent to any
such proposed adjustment, ProVantage shall at its own expense conduct the
contest or compromise of any such adjustment. If ShopKo fails to give ProVantage
the notice referred to in the immediately preceding sentence with respect to any
item of adjustment, ShopKo shall be deemed to have waived any claim that
ProVantage is obligated under Section 3(b) hereof to pay or to indemnify ShopKo
for any increase in taxes resulting from such adjustment. Furthermore, ShopKo
shall not without the prior consent of ProVantage compromise or agree to any
adjustment to the treatment of a Tax item which might, with respect to a tax
period of ProVantage beginning after the Distribution Date, (1) affect, by an
amount not less than $25,000.00, a financial statement tax expense resulting
from a permanent difference, as defined in Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes" (but expressly excluding any temporary difference as defined therein) or
(2) result in a change of accounting method (as defined in Section 446 of the
Code and applicable Treasury Regulations promulgated thereunder) that would
cause a net increase in ProVantage's tax liability in excess of $25,000.00;
provided that, if ProVantage withholds its consent to any such adjustment,
ProVantage shall agree in writing that it will conduct the contest or compromise
of any such proposed adjustment at its own expense and that it will be liable
for the payment of any Tax finally determined to be due by reason of such
adjustment. ProVantage shall be entitled to any refund of Taxes paid on behalf
of or made available to ShopKo's affiliated group which are attributable to
adjustments made to tax periods ending on or before the Distribution Date for
which ProVantage is liable under Section 3(b), whether received by ProVantage or
ShopKo, and ShopKo shall be entitled to all other refunds of Taxes paid on
behalf of or made available to ShopKo's affiliated group for tax periods ending
on or before the Distribution Date, whether received by ProVantage or ShopKo.
(f) Tax Return Filing and Payment Responsibility for Periods Ending After
the Distribution Date. ProVantage has entered into an Administrative Services
Agreement with ShopKo whereby ShopKo has agreed to prepare the tax returns of
ProVantage which relate to the tax period which begins before the Distribution
Date and ends after the Distribution Date and for all subsequent tax periods for
a fee. During the term of such Administrative Services Agreement, ProVantage
shall file said returns and pay all Taxes shown as due on such returns or
ultimately determined to be due with respect to such periods and shall be
entitled to keep and retain for itself any refunds of Taxes or credits paid on
behalf of or made available to it. All tax returns and any schedules to be
included therewith for the tax period which begins before the Distribution Date
and ends after the Distribution Date shall be prepared on a basis consistent
with those prepared for prior tax periods and consistent with the method used by
ShopKo to allocate items of ProVantage's income or deduction for the tax period
ending on the Distribution Date pursuant to Section 3(d) hereof, and shall be
subject to the approval of ShopKo prior to being filed by ProVantage, which
approval shall not be unreasonably withheld. ShopKo shall, to the extent it in
its sole judgment deems permissible, file or cause to be filed state tax returns
for ProVantage for the period ending on the Distribution Date. In the case of a
tax period which
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begins before the Distribution Date and ends after the Distribution Date for
which ProVantage is required hereunder to file the return, ShopKo shall
reimburse ProVantage for an amount equal to the product of (i) total Taxes for
such period, multiplied by (ii) a percentage determined by dividing ProVantage's
net income accrued on or before the Distribution Date (determined using the
allocation method elected by ShopKo under Section 3(d)) by the total ProVantage
net income for such period as shown on such return; provided, however, that any
amount by which ShopKo is required to reimburse ProVantage hereunder shall be
reduced by the amount of all estimated tax payments previously made by ShopKo
with respect to ProVantage's tax liability for such period.
(g) Treatment of ProVantage Net Operating Losses. ProVantage shall make an
election pursuant to Section 172(b)(3) of the Code to carry forward any of its
net operating losses incurred in tax periods beginning after the Distribution
Date which, if carried back, would be carried back to a tax period ending on or
before the Distribution Date. Notwithstanding the foregoing, ProVantage shall be
entitled to any and all tax refunds, whether received by ShopKo or ProVantage,
that result from a carryback of net operating losses or credits of ProVantage
arising in a tax period beginning after the Distribution Date to a tax period
ending on or before the Distribution Date (a "ProVantage Carryback"), if and to
the extent that the ProVantage Carryback results from ProVantage's inability to
make an election under Section 172(b)(3) of the Code or a comparable provision
of any state tax law. If and to the extent that ProVantage fails to make an
election available to it under Section 172(b)(3) of the Code or a comparable
provision of any state tax law, ShopKo shall be entitled to any and all tax
refunds, whether received by ShopKo or ProVantage, that result from a ProVantage
Carryback.
(h) Tax Claim Notices by ProVantage. Promptly after receipt by ProVantage
of a written notice of any demand, claim or circumstance which, after the lapse
of time, would or might give rise to a claim or commencement of any action,
proceeding or investigation with respect to which indemnity or payment may be
sought under Section 3(a) or Section 3(f) hereof (an "Asserted Tax Liability"),
ProVantage shall give written notice thereof to ShopKo (the "Tax Claim Notice").
The Tax Claim Notice shall contain factual information (to the extent known to
ProVantage) describing in reasonable detail the Asserted Tax Liability and shall
include copies of any notice or other document received from any taxing
authority in respect of such Asserted Tax Liability. If ProVantage fails to give
ShopKo prompt notice of an Asserted Tax Liability as required by this Section
3(h), and if such failure results in a detriment to ShopKo, then any amount
which ShopKo is otherwise required to pay ProVantage pursuant to Section 3(a) or
Section 3(f) hereof with respect to such Asserted Tax Liability shall be reduced
by the amount of such detriment.
(i) Tax Adjustment Notices by ShopKo. ShopKo shall give ProVantage prompt
notice of each item of adjustment proposed by a taxing authority for any tax
period ending on or before the Distribution Date which relates to ProVantage (a
"Tax Adjustment Notice"). A Tax Adjustment Notice shall contain factual
information (to the extent known to ShopKo) describing in reasonable detail the
proposed adjustment and shall include copies of any notice or other document
received from any taxing authority in respect of such proposed adjustment. If
ShopKo fails to give ProVantage a Tax Adjustment Notice as required by this
Section 3(i), and if such failure results in a detriment to ProVantage, then any
amount which ProVantage would
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otherwise be required to pay pursuant to Section 3(b) hereof with respect to an
adjustment that should have been the subject of a Tax Adjustment Notice shall be
reduced by the amount of such detriment. ShopKo may elect to direct, through
counsel of its own choosing and at its own expense, the compromise or contest,
either administratively or in the courts, of any Asserted Tax Liability. If
ShopKo elects to direct the compromise or contest of any Asserted Tax Liability,
it shall, either within 30 calendar days after receiving the Tax Claim Notice
with respect to such Asserted Tax Liability (or sooner, if the nature of the
Asserted Tax Liability so requires) or within 30 calendar days after giving the
Tax Adjustment Notice, whichever is applicable, notify ProVantage of its intent
to do so, and ProVantage shall cooperate at its own expense in the compromise or
contest of such Asserted Tax Liability. ShopKo, in its discretion, may enter
into a settlement agreement with respect to, or otherwise resolve, any Asserted
Tax Liability without the consent of ProVantage, except that ShopKo shall not
without the prior consent of ProVantage compromise or agree to any adjustment to
the treatment of a Tax item which might, with respect to a tax period of
ProVantage beginning after the Distribution Date, (1) affect, by an amount not
less than $25,000.00, a financial statement tax expense resulting from a
permanent difference, as defined in Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes" (but expressly excluding any temporary difference as defined therein), or
(2) result in a change of accounting method (as defined in Section 446 of the
Code and applicable Treasury Regulations promulgated thereunder) that would
cause a net increase in ProVantage's tax liability in excess of $25,000.00;
provided that, if ProVantage withholds its consent to any such adjustment,
ProVantage shall agree in writing that it will conduct the contest or compromise
of any such proposed adjustment at its own expense and that it will be liable
for the payment of any tax finally determined to be due by reason of such
adjustment. If ShopKo (1) within 30 calendar days after receiving the Tax Claim
Notice with respect to such Asserted Tax Liability (or sooner, if the nature of
the Asserted Tax Liability so requires) or within 30 calendar days after giving
the Tax Adjustment Notice, whichever is applicable, notifies ProVantage that it
has elected not to direct the compromise or contest of the Asserted Tax
Liability, or (2) fails to properly notify ProVantage within such period of its
election to direct or not to direct the compromise or contest of the Asserted
Tax Liability, ProVantage may pay, compromise, or contest at its own expense and
in its sole discretion such Asserted Tax Liability; provided, however, that
ProVantage may not settle or compromise any Asserted Tax Liability without
giving prior notice to ShopKo of its intention to settle or compromise such
liability and receiving ShopKo's written approval of such settlement or
compromise. ProVantage may, at its own expense and through counsel of its own
choosing, elect to direct the contest or compromise of any Tax adjustment or Tax
liability if ProVantage has previously agreed in a writing delivered to ShopKo
that ShopKo has no obligation under Section 3(a) hereof to pay or indemnify
ProVantage from and against such Tax liability and that ProVantage is liable for
such Tax liability, if any, pursuant to Section 3(b) hereof. If ShopKo or
ProVantage elects to direct the compromise or contest of any liability for Taxes
as provided herein (respectively, the "Electing Party"), the other party shall
promptly empower (by power of attorney and such other documentation as may be
appropriate) the designated representative of the Electing Party to represent
the other party in any audit, claim for refund or administrative or judicial
proceeding insofar as such audit, claim for refund or proceeding involves an
asserted liability for Taxes for which ShopKo would be liable under Section 3(a)
hereof or ProVantage would be liable under Section 3(b) hereof.
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(j) Treatment of ShopKo Options and ShopKo Compensation Exercised by or
Payable to ProVantage Employees. ShopKo and ProVantage understand and agree that
certain stock options to acquire common stock of ShopKo are held by various
ProVantage employees (the "ShopKo Options") and that certain ProVantage
employees may participate in other nonqualified incentive programs of ShopKo
("ShopKo Compensation"). ShopKo agrees that it shall take such action as it
deems appropriate to insure that all applicable federal and state payroll,
withholding, income or other Taxes in connection with or arising out of the
ShopKo Options and the ShopKo Compensation are withheld or collected from any
employee of ProVantage. ProVantage agrees that it shall take all necessary and
appropriate steps to timely claim any compensation deductions available to it
for any Tax purpose in connection with the ShopKo Options exercised after the
Distribution Date and payments of ShopKo Compensation made to ProVantage
employees after the Distribution Date. With respect to both the ShopKo Options
and the ShopKo Compensation, ProVantage agrees to promptly pay ShopKo an amount
equal to the "tax benefit" obtained by ProVantage as a result of its claiming
compensation deductions with respect to such items as well as the employer's
share of any employment taxes paid by ShopKo arising out of exercise of the
ShopKo Options or payment of the ShopKo Compensation. For purposes of the
foregoing, tax benefit shall mean the reduction in the Tax liability of
ProVantage (or of any affiliated or consolidated group of which it is a member)
for any taxable period. Such tax benefit shall be deemed to arise at the time of
the first estimated Tax payment made by ProVantage after the exercise of the
ShopKo Options or the payment of the ShopKo Compensation, or on the due date
(without regard to extensions) for the filing of the Tax return on which
ProVantage is entitled to claim the compensation deductions with respect to such
ShopKo Options or ShopKo Compensation, whichever occurs first. In the event that
there is any subsequent adjustment by any Tax authority with respect to
ProVantage's deductions attributable to such items which has the effect of
reducing the amount of the foregoing tax benefit, ShopKo agrees to pay
ProVantage the difference between the amount of the payment or payments
previously made by ProVantage to ShopKo and the amount that would have been paid
by ProVantage to ShopKo after taking into account the adjustment with respect to
ProVantage's deductions. To the extent that ProVantage fails to claim any
compensation deductions with respect to the ShopKo Options exercised after the
Distribution Date and the ShopKo Compensation, ProVantage agrees to pay to
ShopKo the tax benefit that it would have obtained if it had claimed such
deductions. ProVantage agrees to notify ShopKo at or before the time that
ProVantage agrees to extend the period of limitations for the assessment of tax
by any Tax authority for any Tax period of ProVantage ending after the
Distribution Date and during which a ShopKo Option has been exercised or a
payment of ShopKo Compensation been made. If ProVantage so notifies ShopKo and
ProVantage is ultimately unable to claim deductions with respect to such ShopKo
Options or ShopKo Compensation, no amount shall be owing from ProVantage to
ShopKo under this Section 3(j). If ProVantage fails to so notify ShopKo and
neither ProVantage nor ShopKo is ultimately able successfully to claim
deductions with respect to such ShopKo Options or ShopKo Compensation,
ProVantage agrees that it will pay to ShopKo an amount equal to the tax benefit
that ProVantage would have received if it had successfully claimed deductions
with respect to such items.
(k) Mutual Cooperation. ShopKo and ProVantage shall provide each other with
such cooperation and information as either reasonably may request of the other
in filing any tax return, amended return, or claim for refund, in determining a
liability for Taxes or a right to a
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refund of Taxes, or in conducting any audit or proceeding in respect of Taxes.
Such cooperation and information shall include providing copies of relevant tax
returns or portions thereof, together with accompanying schedules and related
work papers and documents relating to rulings or other determinations by tax
authorities. Each party shall make its employees available on a mutually
convenient basis to provide explanation of any documents or information provided
hereunder. ShopKo shall make available to ProVantage, with respect to all tax
years in which ProVantage was includable in ShopKo's affiliated group (as
defined in section 1504 of the Code) copies of all work papers and schedules
relating to the preparation of ProVantage's pro forma federal and state income
tax returns which were included in ShopKo's federal consolidated and state
income tax returns which are necessary to reconcile such pro forma returns with
the amounts actually included in such consolidated returns. ShopKo and
ProVantage shall make available to each other all other books and records
relating to Taxes of ProVantage with respect to all tax years in which
ProVantage was includable in ShopKo's affiliated group (as defined in section
1504 of the Code). ShopKo and ProVantage agree to maintain and preserve for a
period of eight (8) years after the period to which such documents relate, and,
upon written request, to provide to the other party, such factual information as
that party reasonably requires for filing tax returns, tax planning, and
contesting any tax audit that only ShopKo or ProVantage, as the case may be,
actually possesses.
4. Notice. Any notice shall be in writing and shall be effective and deemed
to have been given when it is (i) mailed, postage prepaid, by certified first
class mail, return receipt requested, addressed to a party and received by such
party; (ii) hand or courier delivered; or (iii) sent by telecopy with receipt
confirmed, as follows:
If to ShopKo: ShopKo Stores, Inc.
000 Xxxxxxx Xxx
X.X. Xxx 00000
Xxxxx Xxx, XX 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
cc: General Counsel
If to ProVantage: ProVantage Health Services, Inc.
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
cc: Legal Department
Any party may from time to time designate another address to which notice or
other communication shall be addressed or delivered to such party and such new
designation shall be effective on the later of (i) the date specified in the
notice or (ii) receipt of such notice by the intended recipient.
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5. General.
(a) Assignment. Neither party may assign any of its rights or delegate any
of its duties or obligations under this Agreement without the other party's
consent. Any attempted assignment or delegation of any rights, duties, or
obligations in violation of this Section 5(a) shall be void and without effect.
(b) Amendment and Waiver. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties, or in the
case of a waiver, by the party waiving compliance. Any waiver by either party
hereto of any condition, or of the breach of any provision or term in any one or
more instances shall not be deemed to be nor construed as a further or
continuing waiver of any such condition, or of the breach of any other provision
or term of this Agreement.
(c) Integration. This Agreement supersedes any and all prior or
contemporaneous oral agreements or understandings between the parties regarding
the subject matter of this Agreement. Nothing in this Agreement is intended to
modify the terms and conditions of any other written agreement between the
parties, including the Administrative Services Agreement of even date herewith.
(d) Severability. If any term or condition of this Agreement shall be held
invalid in any respect, such invalidity shall not affect the validity of any
other term or condition hereof.
(e) Successors. This Agreement binds and inures to the benefit of the
parties and their respective legal representatives, successors, and permitted
assigns.
(f) Applicable Law. This Agreement shall be construed under the laws of the
State of Wisconsin and the rights and obligations of the parties shall be
determined under the substantive law of Wisconsin, without giving effect to
Wisconsin's conflict of law rules or principles.
(g) Reasonableness. As concerns every provision of this Agreement, ShopKo
and ProVantage agree to act reasonably and in good faith unless a provision
expressly states that ProVantage or ShopKo may act in its sole discretion.
(h) Counterparts. This Agreement may be executed in two counterparts, each
of which shall constitute an original, and both of which, when taken together,
shall constitute one and the same instrument.
(i) Further Assurances. Each party shall take such actions, upon request of
the other party and in addition to the actions specified in this Agreement, as
may be necessary or reasonably appropriate to implement or give effect to this
Agreement.
(j) No Third Party Beneficiaries. Each of the provisions of this Agreement
is for the sole and exclusive benefit of the parties hereto and their
Affiliates, respectively, as their interests may appear, and shall not be deemed
for the benefit of any other person or entity or group of persons or entities.
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(k) Construction. Descriptive headings to sections and paragraphs are for
convenience only and shall not control or affect the meaning or construction of
any provisions in this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties as of the date first written above.
SHOPKO STORES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxxx
Xx. Vice President, General Counsel/Secretary
PROVANTAGE HEALTH SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxx
Executive Vice President and
Chief Operating Officer
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