EXHIBIT 2.05
TAX SHARING AGREEMENT
AMONG
KINETIC SYSTEMS, INC.,
KINETICS GROUP, INC.,
AND
CELERITY GROUP, INC.
(FORMERLY KNOWN AS KINETICS HOLDINGS CORPORATION)
TAX SHARING AGREEMENT
This Tax Sharing Agreement (the "Agreement"), effective as of April 9,
2004 (the "EFFECTIVE DATE"), is made and entered into by and among Celerity
Group, Inc., a Delaware corporation ("Celerity," formerly known as Kinetics
Holdings Corporation), Kinetics Group, Inc. ("KGI"), and Kinetic Systems, Inc.,
a California corporation ("KSI"), KSI, KGI and Celerity are sometimes referred
to herein individually as a "party" or collectively as the "parties." Such
references to a "party" shall include a reference to the present and future
subsidiaries of the parties, as the context of the reference may require.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in that certain Restructuring Agreement (the
"RESTRUCTURING AGREEMENT"), dated effective as of April 9, 2004 and the certain
Separation Agreement (the "SEPARATION AGREEMENT"), dated effective as of April
9, 2004.
RECITALS
A. WHEREAS, pursuant to the Separation Agreement, Restructuring Agreement
and other related ancillary agreements, the parties have effectuated the
following:
1. The transfer of Kinetics Germany from Kinetics Group, Inc ("KGI")
to KSI.
2. The transfer of Kinetics Chempure Systems, Inc, ("CHEMPURE") and
Kinetics Thermal Systems, Inc. ("KTS") by KSI to KGI in 2003.
3. The formation of KH LLC ("LLC"), a Delaware limited liability
company, which in turn formed a wholly owned Delaware corporation ("MERGER
SUB").
B. WHEREAS, pursuant to the Separation Agreement, Restructuring Agreement
and other related ancillary agreements, the parties desire that the following
events occur:
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1. The merger of Celerity into Merger Sub, with Celerity as the
surviving entity and the exchange by the Celerity shareholders of their Celerity
stock in return for membership interests in the LLC.
2. A taxable spin off of KSI (the "KSI SPIN-OFF") pursuant to a
distribution of the KSI stock by KGI to Celerity and from Celerity to the LLC.
3. Certain holders of debt securities of Celerity will convert their
debt into senior equity interests of the LLC and certain other holders of debt
of KGI will agree to restructure their debt all pursuant to and as more fully
described in the Restructuring Agreement.
C. WHEREAS, the parties intend that the KSI Spin-Off will result in the
separation of KSI from the Affiliated Group and Combined Group of which Celerity
is the common or group parent;
D. WHEREAS, the parties intend that the KSI Spin-Off will result in the
separation of KSI from the Controlled Group of which Celerity and KSI were
members prior to the KSI Spin-Off;
E. WHEREAS, KSI and Celerity have determined that it is necessary and
desirable to provide for allocations between and among KSI and Celerity of the
responsibilities, liabilities and benefits relating to Taxes paid or payable by
the parties determined on a consolidated, combined, unitary or other group
basis, with respect to any period beginning before the Distribution Date.
F. WHEREAS, KSI and Celerity would like to officially designate and
authorize the Representative of the Affiliated Group and Combined Group to
handle the responsibilities for certain administrative matters, such as:
1. The preparation and filing of Tax Returns for Pre-Distribution
Periods, Straddle Periods, and Post-Distribution Periods.
2. The allocation and payment of Taxes shown to be due and payable
on any Pre-Distribution Period Tax Return or Straddle Period Tax Return (as well
as any estimated or advance payments required to be paid before the filing of
those Tax Returns);
3. The allocation and payment of any additional Taxes determined to
be due and payable with respect to any Pre-Distribution Period or
Straddle-Period;
4. The allocation and disbursement of any Tax refunds received with
respect to any Pre-Distribution Period or Straddle Period;
5. The retention, maintenance and provision of access to all records
necessary to prepare and file appropriate Pre-Distribution Period Tax Returns or
Straddle Period Tax Returns;
6. The conduct of audits, examinations, and proceedings that could
result in a redetermination of Tax liabilities for any Pre-Distribution Period
or Straddle Period;
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NOW, THEREFORE, in consideration of the mutual agreements, provisions, and
covenants contained in this Agreement (the adequacy of which is hereby
acknowledged by the parties), the parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS.
As used in this Agreement the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined).
1.1 "ADJUSTMENT" means an adjustment determined on an issue-by-issue or
transaction-by-transaction basis, as appropriate, made or proposed by a Taxing
Authority with respect to any amount reflected or required to be reflected on
any Return relating to such Tax.
1.2 "AFFILIATED GROUP" means Celerity and all other corporations which
prior to the Distribution were required to be included in a US consolidated
Federal income Tax return with Celerity as the common parent corporation.
1.3 "AFTER TAX BASIS" means a basis such that any payment received or
deemed to have been received by a party (the "ORIGINAL PAYMENT") shall be
supplemented by a further payment to such party so that the sum of the two
payments shall equal the Original Payment, after taking into account all Taxes
that would result from the receipt or accrual of such payments, if legally
required. All payments hereunder shall be calculated on the assumptions that the
payee is subject to tax at the highest marginal rates of Tax applicable to such
class of taxpayer.
1.4 "CODE" shall mean the United Stated Internal Revenue Code of 1986, as
amended, and the Treasury Regulations promulgated hereunder. All section
references are to the Code unless otherwise indicated.
1.5 "COMBINED GROUP" means Celerity and all other corporations which prior
to the Distribution were required to be included in a Return of state income or
franchise Tax filed on a combined, group or unitary basis (a "COMBINED RETURN"),
as opposed to a separate company basis.
1.6 "CONTROLLED GROUP" has the meaning provided in Section 1563(a), as
modified by Section 267(f) which treated corporations as members of the same
Controlled Group if 5 or fewer persons who are individuals, estates, or trusts
own stock possessing more than 50 percent of the total combined voting powers of
each class entitled to vote or more than 50 percent of the total value of shares
of all classes of stock of each corporation, taking into account the stock
ownership of each such person only to the extent such stock ownership is
identical with respect to each such corporation.
1.7 "DISTRIBUTION DATE" means April 9, 2004.
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1.8 "ESTIMATED PAYMENT DATE" means each date occurring during any period
upon which the Affiliated Group or Combined Group is required to make a payment
of estimated Tax whether or not such a payment is due.
1.9 "EXTENSION PAYMENT DATE" means, with respect to any period any date
upon which the Affiliated Group or the Combined Group shall be required to make
a payment of Taxes in connection with any request by Celerity on behalf of the
Affiliated Group or Combined Group for an extension of the date upon which it
would have been required, absent such extension, to file its Tax Return.
1.10 "FINAL DETERMINATION" means (a) a decision, judgment, decree or other
order by any court of competent jurisdiction, which has become final and is
either no longer subject to appeal or for which a determination not to appeal
has been made; (b) a closing agreement made under Section 7121 of the Code or
any comparable foreign, state, local, municipal or other Taxing statute; (c) a
final disposition by any Taxing Authority of a claim for refund; or (d) any
other written agreement relating to an Adjustment to which any Taxing Authority
is a party to the execution of which is final and prohibits such Taxing
Authority from seeking any further legal or administrative remedies with respect
to such Adjustment.
1.11 "IRS" means the United States Internal Revenue Service.
1.12 "POST-DISTRIBUTION PERIOD" means any period of time beginning after
the Distribution Date.
1.13 "PRE-DISTRIBUTION PERIOD" means any period of time beginning before
and ending on or before the Distribution Date.
1.14 "REGULATIONS" means the Regulations issued by the Secretary of the
Treasury interpreting the Code.
1.15 "REPRESENTATIVE OF THE AFFILIATED GROUP AND COMBINED GROUP" means
Celerity Group, Inc. or any successor in interest, and the person(s) within
Celerity Group, Inc. responsible for performing the functions to be performed by
the Representative of the Affiliated Group and Combined Group shall be the
highest ranking tax officer of Celerity Group, Inc. (most likely the VP of
Taxes, or Director of Tax).
1.16 "RETURN" means any return, report, form or similar statement or
document (including, without limitation, any related or supporting information
or schedule attached thereto and any information return, claim for, amended
return and declaration of estimated Tax) that has been or is required to be
filed with any Taxing Authority or that has been or is required to be furnished
to any Taxing Authority in connection with the determination, assessment or
collection of any Taxes or the administration of any laws, regulations or
administrative requirements relating to any Taxes.
1.17 "STRADDLE PERIOD" means any period of time beginning before but
ending after the Distribution Date. Straddle periods may exist in any situations
involving any Tax computed on a basis which does not and cannot be closed on the
Distribution Date including, but not limited to, payroll taxes, property taxes,
sales taxes, and the like.
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1.18 "TAX" (and, with correlative meanings, "TAXES" AND "TAXABLE" means,
without limitation, and as determined on a jurisdiction-by-jurisdiction basis,
each foreign or US Federal, state, local or municipal income, alternative or
add-on minimum, gross receipts, sales, use, ad valorem, transfer, franchise,
profits, license, withholding, payroll, employment, excise, severance, stamp,
occupation, premium, property or any other tax, custom, tariff, impost, levy,
duty, governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or penalty, addition to tax or additional
amount related thereto, imposed by any Taxing Authority.
1.19 "TAX CONTEST" means, without limitation, any audit, examination,
claim, suit, action or other proceeding relating to Taxes in which an Adjustment
to Taxes may be proposed, collected or assessed and in respect of which an
indemnity payment, reimbursement or other payment may be sought under this
Agreement.
1.20 "TAXING AUTHORITY" means any governmental authority or any
subdivision, agency, commission or authority thereof, or any quasi-governmental
or private body having jurisdiction over the assessment, determination,
collection or other imposition of Taxes.
2. ALLOCATION OF TAX LIABILITY.
2.1 REGULAR US FEDERAL INCOME TAX. If the US Federal income Tax liability
of the Affiliated Group for any Pre-Distribution Period or Straddle Period
during which a party or any subsidiary thereof is a member of the Affiliated
Group (an "AFFILIATED GROUP MEMBER"), is determined on a regular US Federal
income Tax basis, then the amount of US Federal income Tax liability allocable
to each Affiliated Group Member and for which each Affiliated Group Member shall
be responsible for such periods, shall be determined using the basic Tax
allocation method described in Section 1552(a)(1) of the Code (the separate
taxable income method), without taking into account the complementary methods of
allocating Tax liabilities described in Treas. Reg. Section 1.1502-33(d) or
Treas. Reg. Section 1.1502-32(b)(3)(iv)(D). The Representative of the Affiliated
Group and Combined Group shall be responsible for preparing such Tax allocations
and computations, including, but not limited to, the determination of how any
Affiliated Group US Federal regular income Tax attributes are to be apportioned
among the members of the Affiliated Group.
2.2 US FEDERAL ALTERNATIVE MINIMUM TAX. If the Affiliated Group pays US
Federal consolidated alternative minimum Tax ("AMT") for any Pre-Distribution
Period or Straddle Period during which a party or any subsidiary thereof is an
Affiliated Group Member, then the amount of the Affiliated Group's AMT allocable
to each Affiliated Group Member and for which each Affiliated Group Member shall
be responsible for such periods shall equal the excess, if any, of (A) the total
AMT of the Affiliated Group for the period, over (B) the AMT of the Affiliated
Group for the period computed by excluding that Affiliated Group Member's items
of income, gain, deduction and loss, and that party's credits. The
Representative of the Affiliated Group and Combined Group shall be responsible
for preparing such Tax allocations and computations, including, but not limited
to, the determination of how any Affiliated Group AMT Tax attributes are to be
apportioned among the members of the Affiliated Group.
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2.3 OTHER CONSOLIDATED, COMBINED, UNITARY OR GROUP TAXES. With respect to
all Taxes other than the US consolidated Federal income Taxes and AMT addressed
in Sections 2.1 and 2.2 of this Agreement, that are determined on a
consolidated, combined, unitary or group basis for any Pre-Distribution Period
or Straddle Period during which a party or any subsidiary thereof is a member of
such a consolidated, combined, unitary or group (a "COMBINED GROUP MEMBER"), the
amount of such other Taxes allocable to each Combined Group Member and for which
each Combined Group Member shall be responsible for such periods shall be
determined by applying the principles underlying the allocation method described
in Section 1552(a)(1) of the Code, without taking into account the complementary
methods of allocating Tax liabilities described in Treas. Reg. Section
1.1502-33(d) or Treas. Reg. Section 1.1502-32(b)(3)(iv)(D). The Representative
of the Affiliated Group and Combined Group shall be responsible for preparing
such Tax allocations and computations, including, but not limited to, the
determination of how any Affiliated Group non-US Federal regular income and
non-AMT Tax attributes are to be apportioned among the members of the Affiliated
Group.
2.4 SEPARATE COMPANY TAXES. With respect to all Taxes computed on a
separate company basis for any Pre-Distribution Period, Straddle Period or
Post-Distribution Period, each party or subsidiary thereof shall be separately
responsible for their respective separate company Taxes for such periods
(including, without limitation, the payment of such separate company Taxes and
the preparation and filing of any Tax Return related to such Taxes).
2.5 POST-DISTRIBUTION PERIOD CONSOLIDATED, COMBINED, UNITARY OR GROUP
TAXES. Any Taxes attributable to any Post-Distribution Period (including,
without limitation, the payment of such Taxes and the preparation and filing of
any Tax Return related to such Taxes) of any party(ies) or subsidiary(ies)
thereof, determined on a consolidated, combined, unitary or group basis, shall
be the sole responsibility of each party or subsidiary thereof as members of
such consolidated, combined, unitary or group for such periods and shall be
allocated and apportioned among such group members in accordance with applicable
Tax law. In addition, any Tax attributes attributable to any Post-Distribution
Period determined on a consolidated, combined, unitary or group basis, shall be
allocated and apportioned among such group members in accordance with applicable
Tax law, or some other reasonable basis if applicable Tax law does not provide
any allocation or apportionment rules. This section 2.5 shall not create any
obligations or liabilities on the part of any party to this Agreement which is
not a member of such consolidated, combined, unitary or group, except to the
extent otherwise provided in this Agreement.
2.6 ALLOCATION OF TAXES WITHIN A STRADDLE PERIOD. Taxes attributable to
any Straddle Periods as determined in this Agreement shall be allocable to each
party or a subsidiary thereof within such Straddle Periods to the portions of
such Straddle Periods before and after the Distribution Date by applying the
provisions of and / or principles underlying the allocation method described in
Treas. Reg. Section 1.1502-76(b)(2) as if each of the parties or subsidiaries
thereof had closed their books as of the end of the Distribution Date. The
Representative of the Affiliated Group and Combined Group shall be responsible
for preparing such Tax allocations and computations.
2.7 DISPUTE RESOLUTION. The Representative of the Affiliated Group and
Combined Group shall use commercially reasonable efforts in preparing all
required Tax
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allocations and computations. Should a dispute arise concerning any Tax
allocations or computations, the dispute shall be resolved by hiring a third
party independent accounting firm to perform the disputed Tax allocations or
computations. The cost of hiring such third party independent accounting firm
shall initially be born by the party disputing the Tax allocations or
computations prepared by the Representative of the Affiliated Group and Combined
Group. If it is determined that the Tax allocations or computations prepared by
the Representative of the Affiliated Group and Combined Group are materially
incorrect as determined by the third party independent accounting firm, then all
such costs of hiring the third party independent accounting firm shall be born
by the Representative of the Affiliated Group and Combined Group who shall pay
such costs, or reimburse the disputing party if such costs have already been
paid. Should the results of the third party independent accounting firm be
inconclusive, the disputed tax allocations shall be resolved pursuant to section
9 of this Agreement.
3. PAYMENTS OF TAX; DISTRIBUTION OF TAX REFUNDS ON ORIGINAL OR AMENDED TAX
RETURNS.
3.1 PAYMENT OF ALLOCATED TAX AMOUNTS. Each party on behalf of and for
itself and each of its subsidiaries shall pay their combined allocable share of
any Taxes as determined in this Agreement and as reflected on any original or
amended Tax Return for any Pre-Distribution or Straddle Period filed after the
Distribution Date to the Representative of the Affiliated Group and Combined
Group filing such Tax Returns on or before the date such Tax Returns are filed
with the appropriate Taxing Authority. The Representative of the Affiliated
Group and Combined Group shall forward any such payments to the appropriate
Taxing Authority in conjunction with the filing of any such Tax Returns.
3.1.1 NOTICE; AVAILABILITY OF FUNDS. The Representative of the
Affiliated Group and Combined Group filing such original or amended Tax Returns
shall provide the other parties with as much notice as is practicable concerning
the date on which the Tax payment required under Section 3.1 hereof shall be
paid. Each paying party shall ensure that each such Tax payment required under
Section 3.1 hereof is made to the Representative of the Affiliated Group and
Combined Group in readily available same day funds such that such funds may be
combined with all other Taxes allocated by the Representative of the Affiliated
Group and Combined Group filing such Tax Returns and paid to the appropriate
Taxing Authorities on the date such Tax Returns are filed.
3.1.2 ESTIMATED TAX CONSIDERATIONS. For these purposes, estimated
Tax payments made by a party or its subsidiaries directly to any relevant Taxing
Authority shall be taken into account in determining the payments required to be
made under Section 3.1 hereof.
3.2 CONSOLIDATED, COMBINED, UNITARY, OR GROUP REFUNDS. If the Affiliated
Group or Combined Group receives a Tax refund as a result of an overpayment of
Taxes shown on any original or amended Tax Return filed by or for the Affiliated
Group or Combined Group with respect to any Pre-Distribution Period or Straddle
Period, then the Representative of the Affiliated Group and Combined Group
receiving any such Tax refund shall pay to the other parties that portion of the
Tax refund, if any, allocable to them or their subsidiaries. The portion of the
Tax refund allocable to the other parties or their subsidiaries shall be equal
to the excess, if any, of (i) the estimated or other Tax payments made by that
party
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or its subsidiaries with respect to the period covered by the relevant Tax
Return to the Representative of the Affiliated Group and Combined Group filing
the relevant Tax Return, over (ii) that party's or its subsidiaries' share of
the Tax liability reported on the original or amended Tax Return, allocated as
provided in Section 2 of this Agreement.
4. MINIMUM TAX CREDITS, CARRYBACK OF TAX ATTRIBUTES.
4.1 ALLOCATION OF MINIMUM TAX CREDITS. Any US consolidated Federal minimum
tax credit of the Affiliated Group for any Pre-Distribution Period or Straddle
Period shall be allocated to the extent possible to each Affiliated Group Member
in proportion to its allocable share of any AMT determined under Section 2.2 of
this Agreement. If it is determined that such an allocation is not possible, or
if the Treasury Department issues Regulations that prohibit or require a
different allocation, then the parties shall use commercially reasonable efforts
to comply with such other required allocation methodology and take into account
any differences in determining the amount one party may need to pay to another
party for the loss of any US consolidated Federal minimum tax credit. The
Representative of the Affiliated Group and Combined Group shall be responsible
for preparing such credit allocations and computations.
4.2 ALLOCATION OF OTHER TAX ATTRIBUTES. All other Tax attributes of the
Affiliated Group or Combined Group for any Pre-Distribution Period or Straddle
Period shall be allocated or apportioned to the members of such groups in
accordance with the rules prescribed by the Code or other applicable Tax law for
the allocation or apportionment of such Tax attributes. If the Code or other
applicable Tax law provides no rules for allocating or apportioning any such Tax
attribute, then such Tax attribute shall be allocated and/or apportioned on a
reasonable basis determined by and in the sole discretion of the Representative
of the Affiliated Group and Combined Group.
4.3 ELECTIVE CARRYBACK OF POST-DISTRIBUTION TAX ATTRIBUTES. If, for any
Post-Distribution Period, a party recognizes a loss, credit, or similar Tax
attribute that, under applicable Tax law, may be carried back at the party's
election to a Pre-Distribution Period or a Straddle Period of the Affiliated
Group or Combined Group during which the party was a member of the Affiliated
Group or Combined Group filing consolidated, combined, unitary or group Tax
Returns, then the party shall forego the ability to carry back such loss,
credit, or similar tax attribute to such period.
4.4 MANDATORY CARRYBACK OF POST-DISTRIBUTION TAX ATTRIBUTES. If, for any
Post-Distribution Period, a party recognizes a loss, credit, or similar Tax
attribute that, under applicable law, must be carried back to a Pre-Distribution
Period or a Straddle Period of the Affiliated Group or Combined Group during
which the party was a member of the Affiliated Group or Combined Group filing
consolidated, combined, unitary or group Tax Returns, then the Representative of
the Affiliated Group and Combined Group for such periods shall, at the party's
expense, file appropriate Tax refund claims within a reasonable period of time
after receiving notice from the party that such Tax attribute must be carried
back to such periods. The Representative of the Affiliated Group and Combined
Group for such periods shall remit to the party any Tax refunds received, less
any applicable costs, with respect to any Tax attribute so carried back upon
receipt of such Tax refund. The Representative of the
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Affiliated Group and Combined Group shall be responsible for preparing such Tax
allocations and computations.
5. CONDUCT OF TAX CONTESTS; REDETERMINATION OF TAX LIABILITIES; COOPERATION.
5.1 SEPARATE PARTY CLAIMS. Each party or its subsidiaries shall have sole
and complete authority to contest any claim by a Taxing Authority arising from
an examination of a Tax Return for any Taxable period with respect to any Tax
Return which includes only that party or its subsidiaries (a "SEPARATE PARTY
CLAIM"). The Representative of the Affiliated Group and Combined Group shall use
its commercially reasonable efforts (at the cost of the requesting party) to
assist the party in assisting with the resolution of the Separate Party Claim as
set forth in that certain Management Services Agreement ("MANAGEMENT SERVICES
AGREEMENT") between and among the parties, dated effective as of April 9, 2004.
5.2 GROUP CLAIMS. Except as otherwise provided in Section 5.1 hereof, the
Representative of the Affiliated Group and Combined Group shall have sole and
complete authority to control and resolve the contest of any claim by any Taxing
Authority arising from an examination of any Tax Return for any Pre-Distribution
or Straddle Period relating to the Affiliated Group or Combined Group (a "GROUP
CLAIM"), provided that other parties ultimately affected by the resolution of
the Group Claim shall be allowed the opportunity to provide constructive and
useful input to the Representative of the Affiliated Group and Combined Group
within the time and procedural constraints established by the Representative of
the Affiliated Group and Combined Group in the handling of any Group Claim at
the sole discretion of the Representative of the Affiliated Group and Combined
Group, No other party shall have any other right to participate in the contest
of a Group Claim. The Representative of the Affiliated Group and Combined Group
shall be entitled to incur reasonable costs in handling any Group Claim. The
other parties affected by a Group Claim shall be responsible for and shall pay
to the Representative of the Affiliated Group and Combined Group their
reasonable share of such costs as determined by the Representative of the
Affiliated Group and Combined Group.
5.3 REDETERMINED TAX LIABILITIES
5.3.1 SEPARATE PARTY CLAIMS. If a Final Determination of Taxes
results from a Separate Party Claim, the relevant party (or parties) shall pay
any resulting increase in Tax liability and shall be entitled to receive any
refunds related to a decrease in Tax liability attributable to the Separate
Party Claim.
5.3.2 GROUP CLAIMS: TAX INCREASE. If a Final Determination of a
Group Claim results in an increase in Tax liability for the Affiliated Group or
Combined Group with respect to the Group Claim, then such Tax increase shall be
allocated to the parties in accordance with the allocation methodology provided
in Section 2 of this Agreement. The Representative of the Affiliated Group and
Combined Group shall notify each party of their share of any such Tax increase
and each party shall pay to the Representative of the Affiliated Group and
Combined Group such share on or before such Tax amount is paid to the relevant
Taxing Authority. The Representative of the Affiliated Group and Combined Group
shall be responsible for preparing such Tax allocations and computations.
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5.3.3 GROUP CLAIMS: TAX REFUND. If a Final Determination of a Group
Claim results in a decrease in Tax liability for the Affiliated Group or
Combined Group with respect to the Group Claim, then such Tax decrease shall be
allocated to the parties in accordance with the allocation methodology provided
in Section 2 of this Agreement. The Representative or the Affiliated Group and
Combined Group shall notify each party of their share of any such Tax decrease
and shall make arrangements to disburse any Tax Refunds resulting from such Tax
decrease (net of any costs) to the other parties when such Tax Refunds are
received from the relevant Taxing Authority. The Representative of the
Affiliated Group and Combined Group shall be responsible for preparing such Tax
allocations and computations.
5.4 RETENTION OF AND ACCESS TO RECORDS; COOPERATION AND ASSISTANCE
5.4.1 RETENTION OF AND ACCESS TO RECORDS. The Representative of the
Affiliated Group and Combined Group shall retain all Tax Returns for
Pre-Distribution and Straddle Periods, together with all related reports, work
papers, schedules or other documents or files (whether in paper or electronic
form), in accordance with the record retention policies established by the
Representative of the Affiliated Group and Combined Group for the Affiliated
Group and Combined Group, and with the requirements of any relevant Taxing
Authority. Subject to the confidentiality provisions of Section 8 hereof, the
Representative of the Affiliated Group and Combined Group shall make these
documents or files available to each party on a reasonable basis and each party
may make copies of such documents or files at their own expense. A party shall
not dispose of any of these documents or files without the written permission of
the Representative of the Affiliated Group and Combined Group.
5.4.2 COOPERATION. Each party and their subsidiaries shall provide
any assistance reasonably requested by the Representative of the Affiliated
Group and Combined Group in conducting any Tax Contest of a Group Claim, subject
to the confidentiality provisions of Section 8 hereof. Such assistance shall
include (without limitation) the execution of any powers of attorney, the
execution of any statute of limitation extensions, the execution of other
appropriate documentation, the attendance at any administrative or judicial
proceedings as requested, the performance of necessary computations, and,
subject to the confidentiality provisions of Section 8 hereof, provision of
access to or furnishing books, records, tax returns, and supporting work papers
relevant to any Group Claim.
5.4.3 ADDITIONAL COOPERATION AND ASSISTANCE. Subject to the
confidentiality provisions of Section 8 hereof, each party shall provide each
other with such cooperation, assistance, and information as the other parties
may reasonably request with respect to the filing with any Taxing Authority of
any Tax Return, amended Tax Return, claim for Tax Refund, or other document
relating to any Pre-Distribution Period or Straddle Period. With respect to any
Tax Return for any Pre-Distribution Period or Straddle Period that includes more
than one party, such assistance shall include the timely submission by the party
to the Representative of the Affiliated Group and Combined Group of pro forma
Tax Returns for the party. A party's obligations under this Section 5.4.3 shall
include, but is not limited to, the submission of a pro forma Tax Return for the
Pre-Distribution Period that will end on the Distribution Date.
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6. PREPARATION OF TAX RETURNS; ESTIMATED PAYMENTS.
6.1 FILING OF AFFILIATED GROUP AND COMBINED GROUP TAX RETURNS FOR
PRE-DISTRIBUTION PERIODS AND STRADDLE PERIODS. The Representative of the
Affiliated Group and Combined Group shall have the sole and complete authority
and responsibility to prepare and timely file (for a fee) all Tax Returns of the
Affiliated Group and Combined Group on behalf of the members of those groups for
any Pre-Distribution Periods and Straddle Periods. Any fees or costs incurred by
the Representative of the Affiliated Group and Combined Group in preparing such
Tax Returns shall be shared by the parties on a reasonable basis determined by
the Representative of the Affiliated Group and Combined Group. Such reasonable
basis may include, but is not limited to, the proportion of Taxes allocated to
each party under Section 2 hereof.
6.2 FILING OF TAX RETURNS FOR POST-DISTRIBUTION PERIODS. The parties shall
be separately responsible for the preparation and timely filing of all Tax
Returns of their own Post-Distribution Periods. The parties may request the
assistance of the Representative of the Affiliated Group and Combined Group (for
an appropriate fee) in the preparation of such Tax Returns as established and
described in the Management Services Agreement. The Representative of the
Affiliated Group will use its commercially reasonable efforts to provide such
requested assistance.
6.3 ESTIMATED PAYMENTS: EXTENSION PAYMENTS. Except for estimated Tax
payments which have already been made by any party for or on behalf of the
Affiliated Group or Combined Group with respect to any Pre-Distribution Period
or Straddle Period, the Representative of the Affiliated Group and Combined
Group shall be responsible for making all estimated Tax payments to any relevant
Taxing Authorities required to be paid on or before the Estimated Payment Date
in connection with any Tax Return of the Affiliated Group or Combined Group for
any Pre-Distribution Period and Straddle Period. The Representative of the
Affiliated Group and Combined Group shall be responsible for making all payments
required in connection with requests for extensions of time to file such Tax
Returns to any relevant Taxing Authorities required to be paid on or before the
Extension Payment Date. The Representative of the Affiliated Group and Combined
Group shall determine each party's share of such estimated Tax payments and Tax
Return extension payments in accordance with the provisions of and principles
described in Section 2 of this Agreement, and shall notify each party in writing
of their allocable share of such estimated Tax payments and Tax Return extension
payments and when such amounts must be paid to the Representative of the
Affiliated Group and Combined Group. Each party shall be required to pay to the
Representative of the Affiliated Group and Combined Group their share of such
amounts on or before the date such payments are paid to the relevant Taxing
Authority as specified in the notice to the parties.
7. INDEMNIFICATION.
7.1 INDEMNITY OBLIGATIONS. Each party shall indemnify each other and hold
each other harmless from and against:
7.1.1 any Tax liability, penalty, interest, cost, or expense arising
out of the fraudulent or negligent preparation by such party of any information,
workpapers, documents, or
11
other items used in the preparation of, or presented in, any Tax Return, amended
Tax Return, or claims for Tax Refund; and
7.1.2 any Tax liability, and related cost, penalties, interest, or
related expense allocated to the party under this Agreement.
7.2 PERFORMANCE OF INDEMNITY OBLIGATIONS. Each party's indemnity
obligations under Section 7.1 hereof shall continue for the entire applicable
statute of limitations period applicable to the Tax involved until such
obligation is satisfied by the party. Each party shall satisfy its indemnity
obligations under Section 7.1 hereof in a manner consistent with the provisions
of Article IV of the Separation Agreement.
7.3 AFTER TAX BASIS. All such indemnification payments required under this
Agreement shall be paid on an After Tax Basis.
7.4 RIGHT OF SET OFF. Each party (a "PAYOR") may reduce the amount of its
indemnification obligation owing to another party (a "PAYEE") to the extent that
the payor has a legitimate indemnification claim against the payee.
7.5 INDEMNIFICATION OF REPRESENTATIVE OF THE AFFILIATED GROUP AND COMBINED
GROUP. The parties hereby indemnify and hold harmless the Representative of the
Affiliated Group and Combined Group for any amounts determined to be solely
related to the performance of its functions under and within the scope of this
Agreement.
8. CONFIDENTIALITY OF DOCUMENTS AND INFORMATION.
8.1 GENERAL RULE. Any documents or information provided pursuant to this
Agreement in connection with a Tax Contest or filing with a Taxing Authority
shall be disclosed by the recipient solely to its employees responsible for any
Tax Contest or Tax filing or to attorneys or accountants advising the recipient
on these matters. Any wider dissemination of these documents or this information
shall be allowed only if required by law or authorized by the party providing
the documents or information.
8.2 CONFIDENTIAL DISCLOSURE AGREEMENT. The parties acknowledge that
communications between and among them may also be governed by that certain
Confidential Disclosure Agreement entered between the parties, dated effective
as of April 9, 2004.
9. DISPUTE RESOLUTION.
9.1 OBLIGATION TO NEGOTIATE TO RESOLVE ANY DISPUTE. Except as provided in
Section 2.7 of this Agreement, if any dispute between the parties relating to
the validity, performance, interpretation or construction of this Agreement,
then the parties shall use commercially reasonable efforts to resolve any such
Tax related dispute through informal negotiation between the parties or their
authorized representatives. If at any time a party feels that such negotiations
are not leading to a resolution of the Tax related dispute, such party may send
a notice to the other parties describing the Tax related dispute and requesting
a meeting of the senior executives from each party. Within ten (10) business
days after such notice is given, each party shall select appropriate senior
executives (e.g., director or V.P. level) of each party
12
who shall have the authority to resolve the matter and shall meet to attempt in
good faith to negotiate a resolution of the Tax related dispute prior to
pursuing the arbitration remedy described below. During the course of
negotiations under this Section 9.1, all reasonable requests made by one party
to the others for information, including requests for copies of relevant
documents, will be honored. The specific format for such negotiations will be
left to the discretion of the designated negotiating senior executives, but may
include the preparation of agreed upon statements of fact or written statements
of position furnished to the other parties.
9.2 BINDING ARBITRATION. In the event that any Tax related dispute arising
out of or related to this Agreement is not settled by the parties within thirty
(30) days after the first meeting of the negotiating senior executives as
described in Section 9.1 of this Agreement, the dispute shall be submitted to
binding arbitration, to be held in Santa Xxxxx County, California, in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
before a single arbitrator selected in accordance with such Commercial
Arbitration Rules. After affording the parties a reasonable opportunity to
present written and testimonial evidence in support of their respective
positions, the arbitrator shall issue his/her decision and award, which shall be
(i) in writing, stating the reasons therefor; (ii) based solely on the terms and
conditions of this Agreement, as interpreted under the laws of the State of
California; and (iii) final and binding upon the parties. The decision and award
of the arbitrator in any arbitration proceeding under this Section 9.2 may be
enforced in any court of competent jurisdiction.
9.3 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in
writing, the parties will continue to provide service and honor all other
commitments under this Agreement and any related agreements during the course of
dispute resolution pursuant to the provisions of Section 9 of this Agreement
with respect to all matters not subject to such dispute, controversy or claim.
10. MISCELLANEOUS.
10.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL A PARTY OR ITS
SUBSIDIARIES BE LIABLE TO THE OTHER PARTIES OR THEIR SUBSIDIARIES FOR ANY
SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST
PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE)
ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and shall
supersede all prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof.
10.3 GOVERNING LAW. This Agreement shall be construed in accordance with
and all Disputes hereunder shall be governed by the laws of the State of
California, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods. The Superior Court
of Santa Xxxxx County and/or the United States District Court for the Northern
District of California shall have jurisdiction and venue over all Disputes
between
13
the parties that are permitted to be brought in a court of law pursuant to
Section 9 of this Agreement.
10.4 NOTICES. Any notice, demand, offer, request or other communication
required or permitted to be given by a party pursuant to the terms of this
Agreement shall be in writing and shall be deemed effectively given the earlier
of (i) when received, (ii) when delivered personally, (iii) one (1) Business Day
after being delivered by facsimile (with receipt of appropriate confirmation),
(iv) one (1) Business Day after being deposited with a nationally recognized
overnight courier service or (v) four (4) days after being deposited in the US
mail, First Class with postage prepaid, and addressed to the attention of:
IF TO KINETIC SYSTEMS, INC.
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
with a copy to:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
IF TO CELERITY GROUP, INC. (FORMERLY KNOWN AS
KINETICS HOLDINGS CORPORATION):
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
with a copy to:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
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A party may substitute a different address or facsimile number, from time to
time, if such substitute is provided to the intended notice recipient in writing
by notice given in the manner provided in this Section 10.4.
10.5 COUNTERPARTS. This Agreement may be executed in counterparts via
facsimile or otherwise, each of which shall be deemed to be an original but all
of which shall constitute one and the same agreement.
10.6 BINDING EFFECT; ASSIGNMENT. A party may not assign or transfer this
Agreement or any of its rights or obligations hereunder (including, without
limitation, in connection with a sale of all or substantially all of such
party's assets), without the prior written consent of each of the other parties.
This Agreement shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective legal representatives, successors and
permitted assigns.
10.7 SEVERABILITY. The parties hereto have negotiated and prepared the
terms of this Agreement in good faith with the intent that each and every one of
the terms, covenants and conditions herein be binding upon and inure to the
benefit of the respective parties. Accordingly, if any one or more of the terms,
provisions, promises, covenants or conditions of this Agreement or the
application thereof to any person or circumstance shall be adjudged to any
extent invalid, unenforceable, void or voidable for any reason whatsoever by a
court of competent jurisdiction, such provision shall be as narrowly construed
as possible, and each and all of the remaining terms, provisions, promises,
covenants and conditions of this Agreement or their application to other persons
or circumstances shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law. To the extent this Agreement
is in violation of applicable law, then the parties agree to negotiate in good
faith to amend the Agreement, to the extent possible consistent with its
purposes, to conform to law.
10.8 WAIVER OF BREACH. The waiver by a party hereto of a breach or
violation of any provision of this Agreement shall not operate as, or be
construed to constitute, a waiver of any subsequent breach of the same or
another provision hereof.
10.9 AMENDMENT AND EXECUTION. This Agreement may not be amended except
with the express written consent of each party to this Agreement. This Agreement
and amendments hereto shall be in writing and executed in multiple copies via
facsimile or otherwise on behalf of KSI and Celerity, and by their respective
duly authorized officers and representatives. Each multiple copy shall be deemed
an original, but all multiple copies together shall constitute one and the same
instrument.
10.10 AUTHORITY. Each of the parties hereto represents to the other
parties that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary
corporate or other actions, (c) it has duly and validly executed and delivered
this Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
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10.11 DESCRIPTIVE HEADINGS. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When a reference is made in this Agreement to
a section hereof, such reference shall be to a section of this Agreement unless
otherwise indicated.
10.12 GENDER AND NUMBER. Whenever the context of this Agreement requires,
the gender of all words herein shall include the masculine, feminine and neuter,
and the number of all words herein shall include the singular and plural.
10.13 ADDITIONAL ASSURANCES. Except as may be specifically provided herein
to the contrary, the provisions of this Agreement shall be self-operative and
shall not require further agreement by the parties; provided, however, at the
request of any party, the other parties shall execute such additional
instruments and take such additional acts as are reasonable, and as the
requesting party may reasonably deem necessary, to effectuate this Agreement.
10.14 FORCE MAJEURE. A party shall not be liable or deemed to be in
default for any delay or failure in performance under this Agreement or other
interruption of service deemed to result, directly or indirectly, from acts of
God, civil or military authority, acts of public enemy, war, accidents,
explosions, earthquakes, floods, failure of transportation, strikes or other
work interruptions by a party's employees, or any other similar cause beyond the
reasonable control of a party unless such delay or failure in performance is
expressly addressed elsewhere in this Agreement.
WHEREFORE, the parties have signed this Tax Sharing Agreement effective as
of the date first set forth above.
KINETIC SYSTEMS, INC. KINETICS GROUP, INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
------------------------------- --------------------------------
Name:______________________________ Name: ______________________________
Title:_____________________________ Title:______________________________
Date:______________________________ Date:_______________________________
CELERITY GROUP, INC. (formerly known as
Kinetics Holdings Corporation)
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name:______________________________
Title:_____________________________
Date:______________________________
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