EXECUTION VERSION
TAX SHARING AGREEMENT
This TAX SHARING AGREEMENT (this "Agreement") is dated as of December 16, 1996,
by and among CORNING INCORPORATED, a New York corporation ("Corning"), CORNING
CLINICAL LABORATORIES INC. (to be renamed Quest Diagnostics Incorporated), a
Delaware corporation ("CCL"), and COVANCE INC., a Delaware corporation
("Covance").
W I T N E S S E T H
WHEREAS, Corning is the common parent of an affiliated group of
corporations which includes CCL and Covance and which group and the members
thereof file consolidated federal income tax returns as well as certain
consolidated, combined or unitary state tax returns;
WHEREAS, the Board of Directors of Corning has determined that it is
appropriate and desirable to effect the Distributions as defined in and pursuant
to a Transaction Agreement dated as of November 22, 1996, between Corning,
Corning Life Sciences Inc., a Delaware corporation ("CLSI"), CCL, and Covance
(the "Transaction Agreement"), subject to the satisfaction or waiver of the
conditions set forth in the Transaction Agreement; and
WHEREAS, the parties hereto desire to set forth their agreements with
regard to their respective liabilities for federal, state, local and foreign
taxes for periods before and after the Distributions and to provide for certain
other tax matters.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained in this Agreement, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. General. 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):
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
will control, or will be controlled by or will be under common control with the
person specified immediately following the Distribution Date.
"Agreement" shall have the meaning described in the above
preamble.
"Carryback Item" shall have the meaning as described in
Section 5.01(b) below.
"CCL" shall have the meaning as described in the preamble
to this Agreement.
"CCL Companies" shall mean, collectively, CCL and each Subsidiary of CCL,
other than Covance and any Subsidiary of Covance.
"CCL Distribution" shall mean the distribution by Corning to the Corning
shareholders of the stock of CCL as more particularly described in the
Transaction Agreement.
"CCL Domestic Companies" shall mean, collectively, each CCL Company
incorporated or organized under the laws of one of the respective States of the
United States.
"CCL Group" shall mean the affiliated group of corporations as defined in
Section 1504(a) of the Code of which CCL is the common parent, not including
Covance or any member of the Covance Group and determined as if the capital
stock of CCL is widely held.
"CCL Returns" shall have the meaning as described in
Section 2.03 below.
"CCL Return Period" shall mean a taxable period to which this Agreement
applies and for which a CCL Return is filed.
"CCL Separate Liability" shall have the meaning as described
in Section 4.01.
"CI Consolidated Return" shall mean any consolidated federal income tax
return or amendment thereof of the CI Group which includes one or more of the
CCL Domestic Companies or the Covance Domestic Companies.
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"CI Consolidated Return Period" shall mean a taxable period to which this
Agreement applies and for which a CI Consolidated Return is filed.
"CI Group" shall mean the affiliated group of corporations as defined in
Section 1504(a) of the Code of which Corning is the common parent.
"CI Group Benefit Amount" shall have the meaning as described in Section
4.04(b) hereof. "CI State, Local and Foreign Returns" shall have the meaning as
described in Section 2.02 below.
"CI State, Local and Foreign Return Period" shall mean a taxable period to
which this Agreement applies and for which a CI State, Local and Foreign Return
is filed.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Corning" shall have the meaning as described in the preamble to this
Agreement.
"Corning Subsidiary" shall mean any subsidiary of Corning other than any
of the Covance Companies and the CCL Companies.
"Covance" shall have the meaning as described in the preamble to this
Agreement.
"Covance Companies" shall mean, collectively, Covance and each Subsidiary
of Covance.
"Covance Distribution" shall mean the distribution by CCL to the CCL
shareholders of the stock of Covance as more particularly described in the
Transaction Agreement.
"Covance Domestic Companies" shall mean, collectively, each Covance
Company incorporated or organized under the laws of one of the respective States
of the United States.
"Covance Group" shall mean the affiliated group of corporations as
defined in Section 1504(a) of the Code of which Covance is the common parent and
determined as if the capital stock of Covance is widely held.
"Covance Returns" shall have the meaning as described in
Section 2.04 below.
"Covance Return Period" shall mean a taxable period to which this
Agreement applies and for which a Covance Return is filed.
"Covance Separate Liability" shall have the meaning as described in
Section 4.01 below.
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"Distributions" shall mean the CCL Distribution, the Covance Distribution
and any transfers relating to the CCL Distribution or the Covance Distribution.
"Distribution Date" shall have the meaning as described in
the Transaction Agreement.
"IRS" shall mean the Internal Revenue Service.
"IRS Penalty Rate" small mean the rate of interest imposed
from time to time on underpayments of income tax pursuant to Code
section 6621.
"IRS Ruling" shall mean the ruling issued by the IRS which states the tax
treatment of the Distributions and related transactions.
"person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Separate Covance/CCL Liability" shall have the meaning as described in
Section 4.02 below.
"Separate Returns" shall have the meaning as described in
Section 2.04 below.
"Spin-Off Tax Indemnification Agreements" shall mean the Spin-Off Tax
Indemnification Agreements dated of even date herewith between or among two or
more of Corning, CCL and Covance.
"Subsidiary" shall have the meaning as described in the
Transaction Agreement.
"Tax" or "Taxes" shall mean all federal, state, local and foreign gross or
net income, gross receipts, withholding, franchise, transfer, estimated or other
tax or similar charges and assessments, including all interest, penalties and
additions imposed with respect to such amounts.
"Temporary Differences" attributable to any entity shall mean (a) any
single item of income or deduction in a CI Consolidated Return in respect of any
tax period that should reverse in one or more subsequent tax periods assuming
proper tax treatment and no change in law or in the tax accounting policies of
such entity (each an "Originating Temporary Difference") or (b) the partial or
complete reversal of an Originating Temporary Difference.
"Transaction Agreement" shall have the meaning as described on page 1 of
this Agreement.
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SECTION 1.02. CLSI. For all tax periods ending before or
on the Distribution Date, references herein to CCL shall include
CLSI.
ARTICLE 2
TAX RETURN FILING
SECTION 2.01. CI Consolidated Returns. Corning shall prepare and file with
the IRS all CI Consolidated Returns and amendments thereto required to be filed
by the CI Group for all tax periods beginning before or on the Distribution
Date. Such returns shall include all income, gains, losses, deductions and
credits of the CCL Domestic Companies and the Covance Domestic Companies.
Corning shall make all decisions relating to the preparation and filing of such
returns, subject to the approval of CCL and Covance, which approval shall not be
withheld unless no reasonable basis exists for the decisions made by Corning in
respect of such return. CCL and Covance further agree to, and respectively agree
to compel the CCL Domestic Companies and the Covance Domestic Companies to, file
or join in the filing of such authorizations, elections, consents and other
documents, and take such other actions as may be necessary or appropriate, in
the opinion of Corning, to carry out the purposes and intent of this Section
2.01, provided that such actions are not inconsistent with this Agreement or the
Spin-Off Tax Indemnification Agreements. CCL and Covance each shall furnish
Corning at least sixty (60) days before the due date (including extensions) of
any such CI Consolidated Return with its completed section of such CI
Consolidated Return, prepared in accordance with this Agreement, in accordance
with instructions from Corning and in a manner consistent with prior returns,
except to the extent otherwise required by the Spin-Off Tax Indemnification
Agreements. CCL and Covance each shall also furnish Corning work papers and
other such information and documentation as is reasonably requested by Corning
with respect to the CCL Companies and the Covance Companies. At Corning's
request, major items of income, deduction, gain and loss selected by Corning for
inclusion in the CI Consolidated Returns and relating to CCL Domestic Companies
and Covance Domestic Companies shall have been
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reviewed and approved prior to submission to Corning by a nationally recognized
accounting firm or law firm with expertise sufficient to address the issues
presented mutually acceptable to Corning and the party or parties submitting
such information. Corning and the other party or parties submitting such
information shall each pay an equal share of the cost of such review.
SECTION 2.02. CI State, Local and Foreign Returns. For any taxable period
beginning before or on the Distribution Date, Corning will prepare and file all
combined, consolidated or unitary state, local or foreign income or franchise
tax returns which are required to be filed by Corning or a Corning Subsidiary
and which include the operations conducted before or as of the Distribution Date
by (i) any of the CCL Companies or the Covance Companies, and (ii) Corning or
any Corning Subsidiary (herein, together with such returns filed for previous
periods, "CI State, Local and Foreign Returns"). Corning will timely advise CCL
and Covance of the inclusion of any of the CCL Companies and the Covance
Companies in any CI State, Local and Foreign Returns and the jurisdictions in
which such returns will be filed, which inclusion will not be inconsistent with
prior CI State, Local and Foreign Returns unless required by applicable law. CCL
and Covance will, and respectively will compel each of the CCL Companies and
Covance Companies whose tax information is included in any CI State, Local and
Foreign Return to, evidence its agreement to be included in such return on the
appropriate form and take such other action as may be appropriate, in the
opinion of Corning, to carry out the purposes and intent of this Section 2.02,
provided that such actions are not inconsistent with this Agreement or the
Spin-Off Tax Indemnification Agreements. CCL and Covance each shall furnish
Corning at least sixty (60) days before the due date (including extensions) of
any such CI State, Local and Foreign Return with a final copy of the information
necessary for Corning to complete such CI State, Local and Foreign Return,
prepared in accordance with instructions from Corning and in a manner consistent
with prior returns, except to the extent otherwise required by the Spin-Off Tax
Indemnification Agreements. CCL and Covance each shall also furnish Corning work
papers and other such information and documentation as is reasonably requested
by Corning.
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2.03 CCL Returns. For any taxable period beginning before or on the
Distribution Date, CCL will prepare and file all combined, consolidated or
unitary state, local or foreign income or franchise tax returns which are
required to be filed separately by CCL or any Subsidiary of CCL, and which
include the operations conducted before or as of the Distribution Date by any of
the CCL Companies and any of the Covance Companies (herein, together with such
returns filed for previous periods, "CCL Returns"). CCL will timely advise
Covance of the inclusion of any of the Covance Companies in any CCL Returns and
the jurisdictions in which such returns will be filed, which inclusion will not
be inconsistent with prior CCL Returns unless required by applicable law.
Covance will, and will compel each of the Covance Companies whose tax
information is included in any CCL Return to, evidence its agreement to be
included in such return on the appropriate form and take such other action as
may be appropriate, in the opinion of CCL, to carry out the purposes and intent
of this Section 2.03, provided that such actions are not inconsistent with this
Agreement or the Spin-Off Tax Indemnification Agreements. Covance shall furnish
CCL at least sixty (60) days before any CCL Return is due (with extensions) with
a final copy of the information necessary for CCL to complete such CCL Return,
prepared in accordance with instructions from CCL and in a manner consistent
with prior returns, except to the extent otherwise required by the Spin-Off Tax
Indemnification Agreements. Covance shall also furnish CCL work papers and other
such information and documentation as is requested by CCL.
2.04 Separate Returns. For any taxable period ending before, on or after
the Distribution Date, each of Corning, CCL and Covance will prepare and file
all respective separate combined, consolidated or unitary state, local or
foreign income or franchise tax returns which are required to be filed
separately by such party and not otherwise described in Section 2.01, 2.02 or
2.03 above (herein, together with such returns filed for previous periods,
"Separate Returns").
ARTICLE 3
TAX LIABILITY
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SECTION 3.01. Corning Liability. Except to the extent otherwise provided
herein and in the Spin-Off Tax Indemnification Agreements, for each CI
Consolidated Return Period and each CI State, Local and Foreign Return Period,
Corning shall be liable for and indemnify CCL and Covance against all taxes due
in respect of all CI Consolidated Returns and all CI State, Local and Foreign
Returns, subject to reimbursement from CCL and Covance respectively as
contemplated by Article 4.
SECTION 3.02. State, local and foreign and separate return liability.
Except to the extent otherwise provided herein and in the Spin-Off Tax
Indemnification Agreements, (a) Corning will pay all taxes due on CI State,
Local and Foreign Returns, subject to appropriate reimbursement by CCL and
Covance respectively for liabilities for state, local and foreign returns as
contemplated by Article 4; (b) CCL will pay all taxes due on returns required to
be filed by CCL by Sections 2.03 and 2.04 hereof, subject to appropriate
reimbursement by Covance as contemplated by Article 4; and (c) Covance will pay
all taxes due on returns required to be filed by Covance by Section 2.04 hereof.
SECTION 3.03. Taxes resulting from the failure of either Distribution. In
the event that either the CCL Distribution or the Covance Distribution shall
fail to qualify for the tax treatment stated in the IRS Ruling, for reasons
other than those indemnified against in the Spin-Off Tax Indemnification
Agreements, any and all Taxes imposed upon or incurred by Corning, CCL or
Covance as a result of such failure (including any liability of Corning, CCL or
Covance arising from Taxes imposed on shareholders of Corning, CCL or Covance to
the extent any such shareholders successfully seek recourse against Corning, CCL
or Covance on account of such failure, or any liability for such Taxes which
Corning, CCL or Covance may assume or otherwise provide for) shall be allocated
among Corning, CCL and Covance in such a manner as will take into account the
extent to which the actions or inactions before, on or after the Distribution
Date of each of Corning, CCL, Covance and their respective Affiliates may have
contributed to such failure, and Corning, CCL and Covance each shall indemnify
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and hold harmless the other from and against the Taxes so allocated to Corning,
CCL and Covance, respectively. In determining the extent to which Corning, CCL
and Covance may have contributed to such failure, all facts and circumstances
shall be taken into account. If it is determined that none of Corning, CCL or
Covance contributed to the failure of such Distribution to qualify for the tax
treatment stated in the IRS Ruling, the liability of Corning, CCL and Covance
under this Section 3.03 shall be borne by each corporation in proportion to
their relative average market capitalization as determined by the average
closing price for each of Corning, CCL and Covance common stock during the 20
trading-day period immediately following the Distribution Date. Any payments to
be made by any of Corning, CCL or Covance to another pursuant to this Section
3.03 shall be made in immediately available funds within ten (10) days of the
receipt of notice that a payment requiring indemnification under this Section
3.03 has been made (or is required to be made), or if there is disagreement
among the parties as to the amount or existence of liability under this Section
3.03, within ten (10) days of the resolution of such disagreement.
ARTICLE 4
SEPARATE LIABILITY
SECTION 4.01. Separate Federal Liability Computation. For all tax periods
beginning after December 31, 1995, for which CI Consolidated Returns have not
been filed by Corning as of the Distribution Date and in respect of which
Corning is required to file a CI Consolidated Return, CCL and Covance
respectively shall compute the CCL Separate Liability and the Covance Separate
Liability for the portion of such periods in which the CCL Domestic Companies
and the Covance Domestic Companies respectively are members of the CI Group.
"CCL Separate Liability" in respect of any CI Consolidated Return Period means
the federal income tax liability (including CCL's share of Corning's alternative
minimum tax if Corning is subject to alternative minimum tax for such CI
Consolidated Return Period, not to exceed Corning's consolidated alternative
minimum tax for such period) computed as of December 31, 1996, as if CCL had
filed a consolidated federal income tax return for the CCL Group in
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respect of such CI Consolidated Return Period. "Covance Separate Liability" in
respect of any CI Consolidated Return Period means the federal income tax
liability (including Covance's share of Corning's alternative minimum tax if
Corning is subject to alternative minimum tax for such CI Consolidated Return
Period, not to exceed Corning's consolidated alternative minimum tax for such
period) computed as of December 31, 1996, as if Covance had filed a consolidated
federal income tax return for the Covance Group in respect of such CI
Consolidated Return Period. If, in computing the CCL Separate Liability or the
Covance Separate Liability, CCL or Covance calculates that the CCL Group or the
Covance Group, respectively, would experience a net operating loss resulting in
no federal income tax liability as of December 31, 1996, the CCL Separate
Liability or the Covance Separate Liability, as the case may be, shall be equal
to a credit amount calculated by Corning and equal to the reduction in the
Federal income tax liability of the CI Group by reason of the use of such net
operating loss of the CCL Group or the Covance Group, as the case may be, in the
CI Consolidated Return that Corning projects to be filed in respect of such
period. Except as may otherwise be required by the Spin-Off Tax Indemnification
Agreements, computations in respect of the CCL Separate Liability and the
Covance Separate Liability shall be consistent with prior CI Group returns,
shall follow the tax elections and other tax positions adopted or prescribed by
Corning and shall take into account the adjustments and modifications set forth
in Section 4.03; provided, however, that the Tax Director and/or General Counsel
of each of Corning and CCL or Covance, as the case may be, shall negotiate
reasonable modifications or alternatives to such requirements in the event that
either CCL or Covance, as the case may be, reasonably determines that such
elections, positions, adjustments or modifications would have a materially
detrimental effect on the tax obligations of CCL or Covance, as the case may be,
in respect of the current or any subsequent tax period.
SECTION 4.02. Separate Covance/CCL Liability Computation. For all tax
periods beginning after December 31, 1995, for which CCL Returns have not been
filed by CCL as of the Distribution Date and in respect of which CCL is required
to prepare and file a CCL Return, Covance shall compute the Separate Covance/CCL
Liability for the portion of such
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periods in which the Covance Companies respectively are subsidiaries of CCL.
"Separate Covance/CCL Liability" in respect of any tax period means the state,
local and foreign tax liability computed as of December 31, 1996, as if Covance
had filed consolidated combined or unitary state, local and foreign tax returns
with the Covance Companies in respect of such tax period. Except as may
otherwise be required by the Spin-Off Tax Indemnification Agreements,
computations in respect of the Separate Covance/CCL Liability shall be
consistent with any prior CCL Returns, shall follow the tax elections,
positions, adjustments and modifications adopted or prescribed by CCL and take
into account adjustments and modifications similar to those set forth in Section
4.03; provided, however, that the Tax Director and/or General Counsel of each of
CCL and Covance shall negotiate reasonable modifications or alternatives to such
requirements in the event that Covance reasonably determines that such
elections, positions, adjustments or modifications would have a materially
detrimental effect on the tax obligations of Covance in respect of the current
or any subsequent tax period.
SECTION 4.03. Adjustments. In computing the liabilities
under Sections 4.01 and 4.02, CCL and Covance respectively shall
take into account the following adjustments and modifications:
(i) Dividends from any member of the CI Group shall be
eliminated;
(ii) Gains or losses on intercompany transactions and
intercompany distributions between any members of the CI
Group shall be deferred and recognized pursuant to Treas.
Reg. xx.xx. 1.1502-13 and 1.1502-14 and Code Section 267 and the
regulations thereunder;
(iii) All carryforwards of tax credits (except the minimum tax
credit), net operating losses, capital losses, charitable contributions
and other similar items shall be determined consistent with prior CI
Consolidated Returns;
(iv) All ordinary income shall be subject to tax at the
highest tax rate applicable to taxable ordinary income of
corporations;
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(v) Any exemption or similar item that must be prorated or
apportioned among the component members of a controlled group of
corporations shall not be taken into account; and
(vi) Other adjustments specified by Corning shall be
made.
SECTION 4.04. Payments. In respect of each period for which liabilities
are required to be calculated pursuant to Section 4.01, CCL and Corning shall
provide for payments in respect of the CCL Separate Liability and Covance and
Corning shall provide for payments in respect of the Covance Separate Liability,
in each case effective as of December 31, 1996. In respect of each period for
which liabilities are required to be calculated pursuant to Section 4.02,
Covance and CCL shall provide for payments in respect of the Separate
Covance/CCL Liability, effective as of December 31, 1996.
SECTION 4.05. Discrepancies. (a) To the extent that the liabilities
calculated pursuant to Section 4.01 are not equal to the liabilities reported on
the actual tax returns filed in respect of the periods contemplated therein: (i)
Corning shall be liable for and shall indemnify and hold harmless the other
parties hereto against all liabilities and claims and shall receive all benefits
and refunds arising in respect of such differences that do not relate to
Temporary Differences attributable to CCL or Covance and (ii) CCL or Covance, as
the case may be, shall be liable for, make payment to Corning in respect of, and
indemnify and hold harmless the other parties hereto against all liabilities and
claims and shall receive all benefits and refunds arising in respect of such
differences that relate to Temporary Differences attributable to CCL or Covance,
respectively, in accordance with Section 7.01(b).
(b) To the extent that the liabilities calculated pursuant to Section 4.02
are not equal to the liabilities reported on the actual tax returns filed in
respect of the periods contemplated therein, Covance shall be liable for, make
payment to CCL in respect of, and indemnify and hold harmless the other parties
hereto against all liabilities and claims where such actual liabilities are
greater than the liabilities calculated under Section 4.02 and shall receive all
benefits and refunds arising in respect of such differences attributable to
Covance where such actual liabilities are less than the liabilities calculated
under Section 4.02..
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(c) Payments to be made to Corning ,CCL or Covance in respect of
obligations arising under this Section 4.04 shall be made no later than five
days before the due date (without extensions) of the actual return to be filed.
SECTION 4.06. State and local returns. The liabilities of CCL and the CCL
Companies and Covance and the Covance Companies with respect to CI State, Local
and Foreign Returns in respect of tax periods beginning before or on the
Distribution Date shall be computed as of December 31, 1996, under the
principles set forth in Section 4.01 and compensation in respect to such
liabilites shall be provided to Corning in accordance with the principles of
Sections 4.04 and 4.05.
ARTICLE 5
POST-DISTRIBUTION CARRYBACKS OF TAX BENEFITS
SECTION 5.01(a). CI Consolidated Returns; Net Operating Losses. If for any
taxable period beginning on or after the Distribution Date, a CCL Company or a
Covance Company incurs a net operating loss that may be carried back to a CI
Consolidated Return Period, the CCL Company or the Covance Company shall make an
election to relinquish the entire carryback period with respect to any such net
operating loss. If for any taxable period beginning on or after the Distribution
Date, a CCL Company or a Covance Company is entitled to a foreign tax credit or
a deduction in respect of such foreign taxes, such CCL Company or Covance
Company must take the deduction in lieu of the foreign tax credit, unless the
foreign tax credit can be fully utilized on a return other than a CI
Consolidated Return.
(b) Other Tax Benefits. If for any taxable period beginning on or
after the date of the CCL Distribution, a CCL Company or a Covance Company
incurs a net capital loss, business credit or other Tax attribute that must be
carried back to a CI Consolidated Return (each a "Carryback Item"), such CCL
Company or Covance Company may file a refund claim reflecting such Carryback
Item only after having obtained a written consent from Corning. In the event
that such CCL Company or Covance Company does not obtain such written consent
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or shall not be eligible to file such claim under applicable law, Corning
may, at the written request and expense of such CCL Company or Covance Company,
file amended returns or refund claims reflecting such Carryback Item. Such CCL
Company or Covance Company shall be compensated for the use of such Carryback
Item as follows:
(i) Corning shall, within thirty (30) days after receipt thereof, pay
to such CCL Company or Covance Company respectively any refunds actually
received by Corning resulting from the filing of an amended return or refund
claim with respect to such Carryback Item attributable to such company, whether
such amended return or refund claim was filed by Corning or the CCL Company or
the Covance Company, together with interest received net of taxes with respect
thereto. With respect to CCL, in the event that Corning would have received a
refund (including interest) with respect to such claim had such refund not been
offset against deficiencies, interest, or penalties assessed against the CI
Group or any member thereof (other than deficiencies, interest or penalties (A)
attributable to the operations of such CCL Company and with respect to which
such entity would otherwise be responsible under the terms of this Agreement,
(B) attributable to a taxable period of the CI Group for which the statute of
limitations has expired, (C) against which CCL is obligated to indemnify Corning
pursuant to the Spin-Off Tax Indemnity Agreements or (D) in respect of which CCL
is obligated to share payment pursuant to Section 3.03 hereof), Corning shall
pay to such CCL Company, within thirty (30) days after receipt of notice of such
offset, an amount equal to the amount of such offset, together with interest
that would have been paid to Corning if such refund had not been offset. With
respect to Covance, in the event that Corning would have received a refund
(including interest) with respect to such claim had such refund not been offset
against deficiencies, interest, or penalties assessed against the CI Group or
any member thereof (other than deficiencies, interest or penalties (A)
attributable to the operations of such Covance Company and with respect to which
such entity would otherwise be responsible under the terms of this Agreement,
(B) attributable to a taxable period of the CI Group for which the statute of
limitations has expired, (C) against which Covance is obligated to indemnify
Corning pursuant to the Spin-Off Tax Indemnity Agreements or (D) in respect of
which Covance is obligated to share payment pursuant to Section 3.03 hereof),
Corning shall pay to such
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Covance Company, within thirty (30) days after receipt of notice of
such offset, an amount equal to the amount of such offset, together with
interest that would have been paid to Corning if such refund had not been
offset.
(ii) If, for any taxable period, Corning is required to and does make
a repayment to the IRS of any portion of a refund described in this Article 5
attributable to the denial of the CCL Company or Covance Company Carryback Item,
then such CCL Company or Covance Company shall pay to Corning in immediately
available funds within ten (10) days following the date Corning notifies such
CCL Company or Covance Company of such repayment, the amount of such repayment
including interest thereon.
(iii) If Corning elects not to file amended returns or refund claims
reflecting a Carryback Item as to which CCL or Covance might receive a tax
benefit, Corning shall notify such CCL Company or Covance Company of its
decision and state the amount including interest which it has determined to be
the appropriate compensation for its claim, and Corning shall pay such CCL
Company or Covance Company within ten (10) days of the receipt by Corning of
written notification that the CCL Company or the Covance Company agrees with its
determination, or upon irreconcilable disagreement between such parties, upon
receipt by Corning of a written determination of a nationally recognized
accounting firm or law firm with expertise sufficient to address the issues
presented and mutually agreeable to such parties.
(iv) Notwithstanding anything to the contrary in this Article, before
Corning files a claim for refund or a CCL Company or a Covance Company is
permitted to file a claim for refund which reflects a Carryback Item and which
would affect a CI Consolidated Return, the validity and amount of any such
Carryback Item shall be reviewed and approved by Corning and such CCL Company or
Covance Company, as applicable, and, upon irreconcilable disagreement between
such parties, by a nationally recognized accounting firm or law firm with
expertise sufficient to address the issues presented and mutually agreeable to
such parties. Each CCL Company and each Covance Company, as applicable, agrees
to reimburse Corning for its reasonable expenses incurred in reviewing, filing
and securing any refund claim made at the request of such CCL Company or Covance
Company.
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ARTICLE 6
POST-DISTRIBUTION CARRYOVERS OF TAX BENEFITS
SECTION 6.01. CI Group items. Corning shall notify CCL and Covance as soon
as practicable after the Distribution Date of any consolidated carryover item
which may be partially or totally attributed to and carried over by a CCL
Company or a Covance Company and will notify CCL and Covance of subsequent
adjustments which may affect such carryover item.
SECTION 6.02. CCL Group Items. CCL shall notify Corning and Covance as
soon as practicable after the Distribution Date of any consolidated carryover
item which may be partially or totally attributed to and carried over by a
Covance Company and will notify Corning and Covance of subsequent adjustments
which may affect such carryover item.
ARTICLE 7
AUDIT ADJUSTMENTS
SECTION 7.01. CI Consolidated, State, Local and Foreign Returns. Except as
provided in the Spin-Off Tax Indemnification Agreements and in Section 3.03
hereof, if any tax liability or refund in respect of the CI Group arises as a
result of an audit by the IRS or other taxing authority and such tax liability
or refund relates to a CI Consolidated Return or a CI State, Local and Foreign
Return filed in respect of any period commencing before or on the Distribution
Date and such liability:
(a) does not relate to Temporary Differences attributable to CCL or
Covance, Corning shall be liable for and shall pay any tax liabilities and
any interest and underpayment penalties associated therewith and Corning
shall receive any such tax refunds and any interest associated therewith.
Any penalties or additions to tax associated with tax liabilities that are
not underpayment penalties shall be allocated among Corning, CCL and
Covance in the proportion to which such penalties are
16
assessed to Corning, CCL and Covance, respectively, or in the event
such penalties are not clearly assessed to any individual party or
parties, in such a manner as will take into account the extent to
which each may have contributed to such penalties. Corning, CCL and
Covance each shall indemnify and hold harmless the other from and
against the penalties so allocated to Corning, CCL and Covance,
respectively; or (b) does relate to Temporary Differences attributable
to CCL or Covance, and such taxing authority:
(i) acknowledges directly or indirectly to Corning's sole
satisfaction that Corning may utilize such Temporary Differences in
computing tax liability, benefit or refunds in respect of
post-Distribution Date tax periods, Corning shall be liable for and
shall pay any such tax liability and any interest and underpayment
penalties associated with such tax liability and shall receive any
such benefit or refunds and any interest associated therewith; or
(ii) does not acknowledge directly or indirectly to Corning's sole
satisfaction that Corning may utilize such Temporary Differences in
computing tax liability, benefit or refunds in respect of
post-Distribution Date tax periods, the party hereto against which
the issue giving rise to such tax liability is directed shall be
liable for and shall pay any such tax liability and any interest and
underpayment penalties associated with such tax liability and shall
receive any such benefit or refunds and any interest associated
therewith; and
any liability and any penalties or additions to tax associated with such
tax liability that are not underpayment penalties shall be allocated among
Corning, CCL and Covance in the proportion to which such penalties have
been assessed by such taxing authority to Corning, CCL and Covance,
respectively, or in the event such penalties have not been clearly
assessed to any individual party or parties, in such a manner as will take
into account the extent to which each may have contributed to such
penalties, and Corning, CCL and Covance each shall indemnify and hold
harmless the other from and against the penalties so allocated to Corning,
CCL and Covance, respectively.
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SECTION 7.02. Non-CI Consolidated, State, Local and Foreign Returns. If
any tax liability or refunds arise in respect of any member of the CI Group
(determined before giving effect to the Distributions) as a result of an audit
by the IRS or other taxing authority and such tax liability or refund does not
relate to a CI Consolidated Return or a CI State, Local and Foreign Return, the
party hereto against which the issue giving rise to such tax liability is
directed or in favor of which such return is applicable shall be liable for and
shall pay any such tax liability and any interest and penalties associated
therewith and shall receive any such refund and any interest associated
therewith, and shall indemnify and hold harmless the other parties hereto from
and against all such liabilities and any interest and penalties related thereto.
SECTION 7.03. Other Audit Liabilities and Refunds. Except as otherwise
provided in this Article 7 or Articles 3 or 4 hereof or in the Spin-Off Tax
Indemnification Agreements, (a) CCL or Covance, as the case may be, shall be
liable for and shall pay all tax liabilities and any interest and penalties
associated therewith, and shall receive any tax refunds and any interest
associated therewith, that arise as a result of an audit by the IRS or other
taxing authority and that relate to the business or operations of CCL or
Subsidiaries of CCL and Covance or Subsidiaries of Covance, respectively, and
CCL and Covance each shall indemnify and hold harmless Corning and each other
from and against the penalties so allocated to CCL and Covance, respectively;
and (b) Corning shall be liable for and shall pay all tax liabilities and any
interest and penalties associated therewith, and shall receive any tax refunds
and any interest associated therewith, that arise as a result of an audit by the
IRS or other taxing authority and that relate to the business or operations of
Corning or Corning Subsidiaries.
SECTION 7.04. Expenses. Any out-of-pocket expenses (e.g., travel expenses,
accountants' fees, attorneys' fees, experts' fees, etc.) incurred by the CI
Group in connection with proposed or actual liabilities or refunds of the type
contemplated in this Article 7 shall be paid by the entities to which such
liabilities or refunds are allocated hereunder. In cases where such expenses
relate to more than one member of the CI Group or more than one party hereto,
the parties affected shall determine how such expenses shall be allocated.
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ARTICLE 8
CONTESTS
SECTION 8.01. CI Group Contests; Notification and communication. If a
notice of audit is given, an audit is begun, an audit adjustment is (or has
been) proposed, or any other claim is (or has been) made by any taxing authority
with respect to a tax liability that, pursuant to the terms hereof, may be
attributable to a CCL Company or a Covance Company with regard to a CI
Consolidated Return or a CI State, Local and Foreign Return, Corning shall
promptly notify CCL and Covance of such event (unless a CCL Company and a
Covance Company previously was notified directly by the relevant tax authority).
Thereafter, Corning or CCL or Covance, as the case may be, shall keep the
others, on a timely basis, informed of all material developments in connection
with audits, administrative proceedings, litigation and other similar matters
that may affect their respective tax liabilities. Failure or delay in providing
notification hereunder shall not relieve any party hereto of any obligation
hereunder in respect of any particular tax liability, except to the extent that
such failure or delay restricts the ability of such party to contest such
liability administratively or in the courts and otherwise materially and
adversely prejudices such party.
SECTION 8.02. Group Contests; Control and Management of Claims. (a) As
among the parties hereto, Corning shall control the prosecution of any audits
and any contests in respect of any claim made by a taxing authority on audit or
in a related administrative or judicial proceeding or in respect of any refund
or credit of taxes, and shall make and prosecute other claims for refunds with
respect to any tax liability, that relates to a CI Consolidated Return Period or
a CI State, Local and Foreign Return Period. CCL or Covance, as the case may be,
may participate in such audits or contests to the extent that Corning in its
sole discretion shall deem appropriate, provided, however, that Corning shall
have the sole right to control, at Corning's expense, the prosecution of any
audit, refund claim or related
19
administrative or judicial proceeding with respect to those matters which could
affect the CI Group's tax liability.
(b) With respect to a tax liability or refund that, pursuant to the
provisions hereof, may be attributable to a CCL Company or a Covance Company
relating to a CI Consolidated Return Period or a CI State, Local and Foreign
Return Period, if Corning elects not to exercise its rights of control under
subsection (a) hereof, and if CCL or Covance so requests, Corning shall contest,
control and allow CCL or Covance, as the case may be, to participate to the
extent that Corning in its sole discretion shall deem appropriate, all at CCL's
or Covance's respective expense, or in the alternative shall permit CCL or
Covance at its own expense to contest and control a claim made by a taxing
authority on audit or in a related administrative or judicial proceeding or by
appropriate claim for refund or credit of taxes (or to make and prosecute other
claims for refund. CCL or Covance, as the case may be, shall pay all
out-of-pocket and other costs relating to such contests, including but not
limited to fees for attorneys, accountants, expert witnesses or other
consultants.
(c) If asserted liabilities unrelated to the matters contemplated herein
become grouped with contests arising hereunder, the parties shall use their
respective best efforts to cause the contest arising hereunder to be the subject
of a separate proceeding.
(d) With respect to matters arising hereunder controlled by Corning, and
where deemed necessary by Corning, CCL and Covance respectively shall compel the
relevant CCL Company or Covance Company to authorize by appropriate powers of
attorney such persons as Corning shall designate to represent such CCL Company
or Covance Company with respect to such matters. The parties hereto shall
reasonably cooperate with one another in a timely manner with respect to any
matter arising hereunder.
(e) With respect to a particular adjustment or claim made with respect to
a CCL Company or a Covance Company that, pursuant to the provisions hereof, may
be attributable to a CCL Company or a Covance Company, to the extent, and for so
long as, Corning, in the
20
exercise of its reasonable judgment, is satisfied that CCL and the CCL Companies
or Covance and the Covance Companies can and will meet all their obligations
under this Agreement, Corning shall not settle, compromise, or concede such
adjustment or claim without the written consent of CCL or Covance, as the case
may be, which consent shall not be unreasonably withheld.
(f) Group contests and the control and management of matters hereunder
relating solely to CCL Returns shall be subject to the provisions of this
Section 8.02, applied as if CCL was Corning and Covance was CCL for purposes
thereof.
ARTICLE 9
INFORMATION AND COOPERATION; BOOKS AND RECORDS
SECTION 9.01(a). Each of CCL and Covance shall deliver to Corning, as soon
as practicable after Corning's request, and Covance shall deliver to CCL, as
soon as practicable after CCL's request, such information and data concerning
the operations conducted before or as of the Distribution Date by the CCL
Companies and the Covance Companies respectively and make available such
knowledgeable employees of the CCL Companies and Covance Companies respectively
as Corning or CCL, as the case may be, may reasonably request, including
providing the information and data required by Corning's, CCL's or Covance's
customary internal tax and accounting procedures, in order to enable each of
Corning or CCL, as the case may be, to complete and file all tax forms or
reports that it may be required to file with respect to the activities of the
CCL Companies and the Covance Companies for taxable periods ending on, prior to
or including the Distribution Date, to respond to audits by any taxing
authorities with respect to such activities, to prosecute or defend any
administrative or judicial proceeding and to otherwise enable Corning or CCL, as
the case may be, to satisfy its accounting and tax requirements. CCL and Covance
shall provide office space to IRS and other tax auditors when they are
conducting on-site audits, and to employees and representatives of Corning or
CCL, as the case may be, as long as a CI Consolidated Return
21
Period or a CI State, Local and Foreign Return Period or a CCL Return Period, as
the case may be, is open to assessment of additional taxes or an assessment with
respect to such period is being contested. Corning shall deliver to CCL or
Covance as soon as practical after CCL's or Covance's request, and CCL shall
deliver to Covance as soon as practical after Covance's request, such
information and data concerning any tax attributes which were allocated to a CCL
Company or a Covance Company that is reasonably necessary in order to enable CCL
or Covance to complete and file all tax forms or reports that it may be required
to file with respect to such activities of the CCL Companies or the Covance
Companies from and after the Distribution Date, to respond to audits by any tax
authorities with respect to such activities, to prosecute or defend claims for
taxes in any administrative or judicial proceeding, and to otherwise enable CCL
or Covance to satisfy its accounting and tax requirements. In addition, Corning
shall make available to CCL and Covance, and CCL shall make available to
Covance, its knowledgeable employees for such purpose.
(b). Each CCL Company and each Covance Company shall retain all books,
records, documentation or other information relating to any CI Consolidated
Return or CI State, Local and Foreign Return, and each Covance Company shall
retain all books, records, documentation or other information relating to any
CCL Return Period, until the expiration of the applicable statute of limitations
(including any extension or waiver thereof). Upon the expiration of any statute
of limitations, the foregoing information may be destroyed or disposed of
provided that (i) the CCL Company or the Covance Company provides sixty (60)
days prior written notice to Corning or CCL, as the case may be, describing in
reasonable detail the documentation to be destroyed or disposed of and (ii)
Corning or CCL, as the case may be, agrees in writing to such destruction or
disposal. If Corning or CCL, as the case may be, objects to the proposed
destruction or disposal, then the CCL Company or the Covance Company shall
promptly deliver such materials to Corning or CCL, as the case may be, or
continue to retain such materials.
22
ARTICLE 10
GENERAL PROVISIONS
SECTION 10.01. Effectiveness. The effectiveness of this
Agreement and the obligations and rights created hereunder are
subject and conditioned upon the completion of the Distributions
pursuant to the terms of the Transaction Agreement.
SECTION 10.02. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by courier service (including overnight delivery), by
cable, by telecopy confirmed by return telecopy, by telegram, by telex or
by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the addresses (or at such other
address for a party as shall be specified in a notice given in accordance
with this Section 10.01) listed below:
(a) To Corning Incorporated:
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attn: each of the General Counsel and Tax Director
(b) To CCL:
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attn: each of the General Counsel and Tax Director
23
(c) To Covance:
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Telecopy:(000) 000-0000
Attn: each of the General Counsel and Tax Director
SECTION 10.03. Complete Agreement; Construction. This Agreement is
intended to provide rights, obligations and covenants in respect of Taxes and,
together with the Spin-Off Tax Indemnification Agreements, shall supersede all
prior agreements and undertakings, both written and oral, between the parties
with respect to the subject matter hereof and thereof. In the event provisions
of this Agreement are inconsistent with provisions in a Spin-Off Tax
Indemnification Agreement, the provisions in the Spin-Off Tax Indemnification
Agreement shall control, except in cases where this construction would provide a
duplicate benefit.
SECTION 10.04. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 10.05. Waiver. The parties to this Agreement may (a) extend the
time for the performance of any of the obligations or other acts of the other
party or parties, (b) waive any inaccuracies in the representations and
warranties of the other party or parties contained herein or in any document
delivered by the other party or parties pursuant hereto or (c) waive compliance
with any of the agreements or conditions of the other party or parties contained
herein. Any such extension or waiver shall be valid only if set forth in an
instrument in writing signed by the party to be bound thereby. Any waiver of any
term or condition shall not be construed as a waiver of any subsequent breach or
a subsequent waiver of the same term or condition, or a waiver of any other term
or condition, of this Agreement. The failure of any party to assert any of its
rights hereunder shall not constitute a waiver of any such rights.
24
SECTION 10.06. Amendments. This Agreement may not be
amended or modified except (a) by an instrument in writing signed
by, or on behalf of, the parties or (b) by a waiver in accordance
with Section 10.05.
SECTION 10.07. Successors and Assigns. 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. This Agreement cannot be
assigned by Corning, CCL or Covance, in each case without the consent of the
other two parties hereto.
SECTION 10.08. Subsidiaries. Each of the parties hereto shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth herein to be performed by any subsidiary of such party or
by any entity that is contemplated to be a subsidiary of such party on and after
the Distribution Date.
SECTION 10.09. Third Party Beneficiaries. This Agreement shall be binding
upon and inure solely to the benefit of the parties hereto and their respective
subsidiaries, and nothing herein, express or implied, is intended to or shall
confer upon any third parties any legal or equitable right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
SECTION 10.10. Headings. The descriptive headings
contained in this Agreement are for convenience of reference only
and shall not affect in any way the meaning or interpretation of
this Agreement.
SECTION 10.11. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
25
SECTION 10.12. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, applicable to
contracts executed in and to be performed entirely within that state.
SECTION 10.13. Arbitration. Any conflict or disagreement arising out of
the interpretation, implementation, or compliance with the provisions of this
Agreement shall be finally settled pursuant to the provisions of Article V
(Dispute Resolution) of the Transaction Agreement, which provisions are
incorporated herein by reference.
SECTION 10.14. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
26
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
CORNING INCORPORATED,
by ____________________________________
Name:
Title:
CORNING CLINICAL LABORATORIES INC.,
by ____________________________________
Name:
Title:
COVANCE INC.,
by ____________________________________
Name:
Title:
MPE
taxshar.fin
