Exhibit 10.7
TAX ALLOCATION AND INDEMNIFICATION AGREEMENT
TAX ALLOCATION AND INDEMNIFICATION AGREEMENT, dated as of
August 20, 1998 (the "Agreement"), by and among Evenflo & Spalding Holdings
Corporation ("E&S"), a Delaware corporation, and its direct and indirect
subsidiaries (other than Evenflo Company, Inc. and its direct and indirect
subsidiaries) (each, an "E&S Subsidiary", and, collectively, the "E&S Group"),
and Evenflo Company, Inc. ("Evenflo"), a Delaware corporation, and its direct
and indirect subsidiaries (each, an "Evenflo Subsidiary", and, collectively, the
"Evenflo Group").
WITNESSETH:
WHEREAS, E&S is the common parent of an affiliated group (as
defined in Section 1504(a) of the Code) of United States corporations (the "E&S
Consolidated Group"), which includes Evenflo, LISCO Feeding, Inc., a Delaware
corporation ("LISCO Feeding") and LISCO Furniture, Inc., a Delaware corporation
("LISCO Furniture" and, together with LISCO Feeding, the "Evenflo United States
Subsidiaries" and the Evenflo United States Subsidiaries, together with Evenflo,
the "Evenflo Consolidated Group"), that has elected to file consolidated United
States federal income tax returns;
WHEREAS, the members of the E&S Consolidated Group, including
the members of the Evenflo Consolidated Group, are parties to the Consolidated
Federal Income Tax Liability Allocation Agreement among E&S Holdings Corporation
and its Subsidiaries, dated as of September 30, 1993 (the "Old Tax
Sharing Agreement");
WHEREAS, LISCO, Inc., a Delaware corporation and an indirect
wholly-owned subsidiary of E&S, proposes to sell a portion of the Evenflo common
stock that it currently owns;
WHEREAS, as a result of such sale of Evenflo common stock,
Evenflo and the Evenflo United States Subsidiaries will no longer be considered
members of the E&S Consolidated Group for United States federal income tax
purposes and, thus, will no longer be eligible to file consolidated United
States federal income tax returns with E&S and the other members of the E&S
Consolidated Group; and
WHEREAS, Evenflo and the other members of the Evenflo Group,
on the one hand, and E&S and the other members of the E&S Group, on the other
hand, desire to (x) terminate their respective rights, duties and obligations
under the Old Tax Sharing Agreement with respect to each other, (y) allocate the
tax burdens and benefits for taxable years or periods ending on or prior to the
Disaffiliation Date and (z) provide for certain other tax matters, including the
apportionment of tax attributes, the assignment of responsibility for the
preparation and filing
of Tax Returns and the prosecution and defense of any Tax controversies;
NOW, THEREFORE, in consideration of the agreements and
mutual covenants contained herein, the parties hereto agree as
follows:
Section 1. Definitions. As used in this Agreement,
the following terms shall have the following meaning:
"Affiliate" shall mean, with respect to any
entity, any other individual, corporation, partnership, joint venture, limited
liability company, association, joint-stock company, trust or unincorporated
organization which directly or indirectly controls, is controlled by or is under
common control with such entity.
"Code" shall mean the Internal Revenue Code of
1986, as amended.
"Disaffiliation Date" shall mean the date on which
the members of the Evenflo Consolidated Group are no longer eligible to file a
consolidated United States federal income tax return with E&S and the other
members of the E&S Consolidated Group.
"Tax" or "Taxes" shall mean any federal, state,
local or foreign income, gross receipts, property, sales, use, license, excise,
franchise, employment, payroll, withholding, alternative or add-on minimum, ad
valorem, value added, transfer or excise tax, or any other tax, custom, duty,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest or penalty, imposed by any governmental authority.
"Tax Return" shall mean any return, report or
similar statement required to be filed with respect to any Tax (including any
attached schedules), including, without limitation, any information return,
claim for refund, amended return or declaration of estimated Tax.
Section 2. Termination of Prior Agreement. Except to the
extent expressly provided herein and in paragraph 9 of the Old Tax Sharing
Agreement, the rights, duties and obligations of Evenflo and the Evenflo United
States Subsidiaries (and, to the extent applicable, any other member of the
Evenflo Group) under the Old Tax Sharing Agreement shall terminate on the
Disaffiliation Date and the terms of this Agreement shall govern the matters
described herein and in the Old Tax Sharing Agreement. The terms of the Old Tax
Sharing Agreement shall remain in full force and effect after the Disaffiliation
Date with respect to the members of the E&S Consolidated Group, other than the
members of the Evenflo Consolidated Group and the other members of the Evenflo
Group. Except as expressly provided
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herein and in paragraph 9 of the Old Tax Sharing Agreement, on and after the
Disaffiliation Date, the terms of this Agreement shall supersede the terms of
the Old Tax Sharing Agreement as they pertain to the rights, duties and
obligations of the Evenflo Group with regard to the members of the E&S Group and
vice versa.
Section 3. Filing of Tax Returns and Payment of Taxes.
(a) E&S shall be responsible for preparing and filing all consolidated United
States federal income tax returns that include Evenflo and/or any of the Evenflo
United States Subsidiaries for all taxable years or periods ending on or prior
to, or including, the Disaffiliation Date. E&S shall cause all such consolidated
returns to be prepared and filed timely. E&S also shall be responsible for
preparing and filing any consents to, and/or requests for, an extension of time
for filing such consolidated returns or any related information or similar
returns. E&S shall provide Evenflo with copies of such consolidated returns for
its review at least 30 days prior to the date such returns are required to be
filed and shall furnish Evenflo a copy of such returns (as filed) promptly after
such returns have been filed. Subject to its right to reimbursement hereunder,
E&S shall be responsible for, and shall pay or cause to be paid timely, all
United States federal income taxes shown as due and owing on such consolidated
returns.
(b) Evenflo and each of the Evenflo United States Subsidiaries
shall furnish to E&S (or its designated representatives) on a timely basis such
information, schedules, analysis and any other items as are necessary, or are
reasonably requested by E&S, to allow E&S to prepare and file timely the
consolidated United States federal income tax returns described in (a) above.
(c) Evenflo and each of the Evenflo United States Subsidiaries
shall pay to E&S the amount of United States federal income taxes that such
entities are required to pay with respect to any consolidated United States
federal income tax return filed by E&S with respect to any taxable year or
period ending on or prior to, or including, the Disaffiliation Date as
determined in accordance with paragraph 2 of the Old Tax Sharing Agreement.
(d) E&S may, in its sole and absolute discretion, file amended
consolidated United States federal income tax returns for any taxable year or
period ending on or prior to the Disaffiliation Date. If any such amended return
affects or relates to Evenflo or the Evenflo United States Subsidiaries, E&S
shall provide Evenflo with a copy of such amended return for its review at least
30 days prior to the filing of such amended return and furnish a copy of such
amended return to Evenflo (as filed) promptly after such amended return has been
filed. Neither Evenflo nor the Evenflo United States Subsidiaries may file an
amended consolidated United States federal income tax return for, or on behalf
of, the E&S Consolidated Group for any
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taxable year or period ending on or prior to the Disaffiliation Date.
(e) Evenflo and the Evenflo Subsidiaries shall be responsible
for preparing and filing any Tax Return (each an "Evenflo Separate Return") that
is not required to be filed on a consolidated, combined or unitary basis with
E&S or any E&S Subsidiary. Evenflo and/or the Evenflo Subsidiaries shall be
responsible for, and shall pay or cause to be paid, all Taxes shown as due and
owing on any Evenflo Separate Return.
(f) E&S and the E&S Subsidiaries also shall be responsible for
preparing and filing any Tax Return (each an "E&S Separate Return") that is not
required to be filed on a consolidated, combined or unitary basis with Evenflo
or any Evenflo Subsidiary. E&S and/or the E&S Subsidiaries shall be responsible
for, and shall pay or cause to be paid, all Taxes shown as due and owing on any
E&S Separate Return.
(g) For all taxable years or years beginning after the
Disaffiliation Date, (i) E&S shall be responsible for filing, or causing to be
filed, all Tax Returns required to filed by, or on behalf of, (w) the E&S
Consolidated Group or any member thereof or (x) any other E&S Subsidiary, and
(ii) Evenflo shall be responsible for filing, or causing to be filed, all Tax
Returns required to be filed by, or on behalf of, (y) the Evenflo Consolidated
Group or any member thereof or (z) any other Evenflo Subsidiary. E&S shall be
responsible for, and shall pay or cause to be paid, all Taxes shown as due and
owing on any Tax Return described in (i) above, and Evenflo shall be responsible
for, and shall pay or cause to be paid, all Taxes shown as due and owing on any
Tax Return described in (ii) above.
Section 4. Tax Refunds and Attributes. (a) The United States
federal income tax attributes, including, but not limited to, net operating
losses, net capital losses, foreign tax credits, excess charitable
contributions, alternative minimum tax credits and research and development tax
credits, of the E&S Consolidated Group as of the day before the Disaffiliation
Date shall be apportioned among the E&S Consolidated Group and the members of
the Evenflo Consolidated Group in accordance with the applicable rules set forth
in Treasury Regulation Sections 1.1502-79 and 1.1502-79A; provided, however,
that (x) any alternative minimum tax credits shall be allocated and apportioned
in accordance with the rules set forth in proposed Treasury Regulation Section
1.1502-55 and (y) any research and development credits shall be allocated and
apportioned in accordance with the principles set forth in Treasury Regulation
Section 1.1502-79 and 1.1502-79A.
(b) In the event that Evenflo or any Evenflo United States
Subsidiary elects to carry back any deduction, loss or credit that is allocated
and apportioned to them (the "Evenflo tax attributes"), or that arises in a
taxable year or period that
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begins on or after the Disaffiliation Date, any refund of Taxes that results
from the carryback of such Evenflo tax attributes shall be allocable to Evenflo
and/or the relevant Evenflo United States Subsidiary, and E&S shall pay the
amount of such refund to Evenflo within 10 days of the date it receives such
refund. If the carryback of such Evenflo tax attributes reduces the United
States federal income tax liability of the E&S Consolidated Group for any
taxable year or period (e.g., a taxable year or period for which a tax return
has not been filed) but does not result in a refund of Taxes, and such tax
attributes are considered to have been utilized by a member of the E&S
Consolidated Group (other than Evenflo or the Evenflo United States
Subsidiaries) pursuant to paragraph 3 of the Old Tax Sharing Agreement, E&S and
the relevant E&S Subsidiaries shall pay to Evenflo the amounts required to be
paid by them for the utilization of such Evenflo tax attributes under such
paragraph 3. In the event that members of the E&S Consolidated Group (other than
Evenflo and the Evenflo United States Subsidiaries) also have tax attributes
that may be carried back to the same taxable period such tax attributes and the
Evenflo tax attributes shall be deemed to be used proportionately.
(c) If E&S or any of the E&S Subsidiaries receives any refund
of Taxes that is allocable to Evenflo or any of the Evenflo Subsidiaries under
paragraph 4 of the Old Tax Sharing Agreement or otherwise, E&S shall pay the
amount of such refund to Evenflo within 10 days of the date such refund is
received.
(d) If E&S or any E&S Subsidiary utilizes an Evenflo tax
attribute to reduce their United States federal income tax liability or their
liability for taxes under the Old Tax Sharing Agreement, E&S or the relevant E&S
Subsidiary shall pay Evenflo or the relevant Evenflo Subsidiary for the use of
such Evenflo tax attribute in accordance with paragraph 3 of the Old Tax Sharing
Agreement. If Evenflo or any Evenflo United States Subsidiary utilizes a tax
attribute of E&S or any E&S Subsidiary to reduce their United States federal
income tax liability or their liability for taxes under the Old Tax Sharing
Agreement, Evenflo shall pay E&S or the relevant E&S Subsidiary for the use of
such tax attribute in accordance with paragraph 3 of the Old Tax Sharing
Agreement.
Section 5. Contest Provisions. (a) E&S shall have the sole
right to represent Evenflo's and/or the Evenflo United States Subsidiaries'
interests in any audit or administrative or court proceeding relating to the
United States federal income tax liability of Evenflo and/or the Evenflo United
States Subsidiaries for any taxable year or period ending on or before, or
including, the Disaffiliation Date; provided, however, that E&S may not settle
or compromise any issue that would adversely affect Evenflo and/or the Evenflo
United States Subsidiaries without the prior written consent of Evenflo, which
consent may not be unreasonably withheld. Evenflo and the Evenflo United States
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Subsidiaries also may participate, at their own expense, in any such audit or
administrative or court proceeding.
(b) E&S shall be responsible for, and shall control, all
audit, administrative or court proceedings related to a E&S Separate Return or
the Taxes reported thereon. Evenflo shall be responsible for, and shall control,
all audit, administrative or court proceedings related to an Evenflo Separate
Return or the Taxes reported thereon.
(c) E&S shall be responsible for, and shall control, all
audit, administrative or court proceedings related to the United States federal
income tax liability of the E&S Consolidated Group for all taxable years or
periods beginning on or after the Disaffiliation Date, and Evenflo shall be
responsible for, and shall control all audit, administrative or court
proceedings related to the United States federal income tax liability of the
Evenflo Consolidated Group for all taxable years or periods beginning on or
after the Disaffiliation Date.
Section 6. Audit Adjustments. (a) If (i) the United States
federal income tax liability of the E&S Consolidated Group for any taxable year
or period ending on or before, or including, the Disaffiliation Date is
increased (whether by reason of the filing of an amended return or refund claim,
or as a result of an IRS audit or judicial decision) and (ii) any part of such
increase is attributable to Evenflo and/or an Evenflo Subsidiary, the liability
of Evenflo and/or the relevant Evenflo Subsidiary for such taxes shall be
redetermined in accordance with paragraphs 2, 3 and 4 of the Old Tax Sharing
Agreement and Evenflo and the Evenflo Subsidiaries shall be jointly and
severally liable to pay E&S any amounts required to be paid by Evenflo or the
relevant Evenflo Subsidiary under the Old Tax Sharing Agreement as a result of
such redetermination; provided, however, that Evenflo and the Evenflo
Subsidiaries shall not be required to pay any amount hereunder in respect of any
Taxes that are paid or indemnified by Abarco, N.V. ("Abarco") under Article VIII
of the Recapitalization and Stock Purchase Agreement, dated as of August 15,
1996, by and among Strata Holdings L.P., E&S Holdings Corporation and Abarco
(the "Abarco Tax Indemnity").
(b) If (i) the United States federal income tax liability of
the E&S Consolidated Group is adjusted or redetermined for any taxable year or
period ending on or before the Disaffiliation Date and (ii) as a result of such
adjustment or redetermination, the E&S Consolidated Group utilizes tax
attributes that are, or would have been, allocated and apportioned to members of
the Evenflo Consolidated Group but for such utilization, then E&S and the
relevant E&S Subsidiaries shall pay to Evenflo the amounts required to be paid
for the utilization of such tax attributes under paragraphs 3 and 4 of the Old
Tax Sharing Agreement. In the event that members of the E&S Consolidated Group
(other than Evenflo or the Evenflo United States Subsidiaries) also have tax
attributes that also may be
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utilized in the same taxable year or period as the Evenflo tax attributes
described in this Section 5(b), such E&S and Evenflo tax attributes shall be
deemed to be used proportionately.
(c) If (and to the extent that) E&S or any E&S Subsidiary
receives any amount from Abarco under the Abarco Tax Indemnity that is
attributable to any Taxes that were actually paid by Evenflo or an Evenflo
Subsidiary, E&S shall pay such amounts to Evenflo within 10 days of its receipt
of such amount.
Section 7. Tax Indemnity. E&S and the E&S Subsidiaries shall
jointly and severally indemnify and hold harmless Evenflo and the Evenflo
Subsidiaries from and against any Taxes imposed on Evenflo or the Evenflo
Subsidiaries solely as a result of their being a member of the E&S Consolidated
Group pursuant to Treasury regulation Section 1.1502-6 or any similar provision
of state, local or foreign law.
Section 8. State, Local and Foreign Taxes. The principles set
forth herein also shall apply and govern the allocation of any state, local
and/or foreign tax liabilities and benefits for taxable years or periods ending
on or before, or including, the Disaffiliation Date, the apportioning of any tax
attributes allocable to the relevant parties and the assigning of responsibility
for preparing and filing any state, local or foreign consolidated, combined or
unitary tax returns and prosecuting or defending any controversies or other
matters with respect thereto with respect to any state, local and/or foreign
income or franchise taxes in any state, local and/or foreign jurisdiction where
Evenflo or any Evenflo Subsidiary has elected or has been required to file an
income or franchise tax return on a consolidated, combined, unitary or other
similar basis with E&S or any E&S Subsidiary.
Section 9. Alternative Minimum Tax. The principles of this
agreement also shall apply for purposes of determining the alternative minimum
tax liability of Evenflo and the Evenflo United States Subsidiaries for all
taxable years or periods ending on or before the Disaffiliation Date.
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Section 10. Assistance and Cooperation. After the
Disaffiliation Date, each of E&S and Evenflo shall (and shall cause their
respective Affiliates to) provide each other with such cooperation and
information as either of them may reasonably request from the other for purposes
of (x) filing any Tax Return, amended Tax Return or refund claim, (y)
determining a Tax liability or a right to a refund of Taxes or (z) participating
in or conducting any audit, administrative, judicial or other proceeding with
respect to Taxes or otherwise in connection with contesting any Tax liability.
Each of the parties hereto and their respective Affiliates shall give the other
party timely notice of any pending or threatened Tax audits or proceeding that
may have an effect on the Tax liability of such other party or its Affiliates.
Any information obtained by any party under this Section 10 shall be kept
confidential except as may be otherwise necessary in connection with the filing
of Tax Returns or claims for refund, or in connection with an audit or other
administrative or judicial proceeding relating to Taxes or the Tax liability of
such party.
Section 11. General Provisions.
(a) Effectiveness. This Agreement will be effective from and
after the Disaffiliation Date.
(b) Entire Agreement; Binding Effect. This Agreement
constitutes the entire agreement between the parties hereto and supersedes all
other agreements and understandings, both written and oral, between such parties
with respect to the subject matter hereof, including, except as expressly
provided otherwise herein, the Old Tax Sharing Agreement. This Agreement may not
be assigned by either party (by operation of law or otherwise) without the prior
written consent of the other party.
(c) Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable, the
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
(d) Applicable Law. This Agreement shall be governed by and be
construed in accordance with the laws of the State of New York, without giving
effect to the principles thereof relating to conflicts of laws.
(e) Notices. All notices, requests and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
if telecopied (only if confirmed), if sent by FedEx or other overnight courier
or delivery service, or if mailed by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following addresses or
facsimile numbers:
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(a) if to E&S:
Evenflo & Spalding Holdings Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxx, Acting Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to Evenflo:
Evenflo Company, Inc.
Northwoods Business Center II
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxx, Vice President and
Chief Financial Offer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The address or facsimile number of a party, for the purposes of this Section
11(e), may be changed by giving written notice to the other party of such change
in the manner provided herein for giving notice. Unless and until such written
notice is received, the addresses and facsimile numbers provided herein shall be
deemed to continue in effect for all purposes hereunder.
(f) Amendment and Waiver. No amendment of any provision of
this Agreement shall in any event be effective, unless the same shall be in
writing and signed by the parties hereto. Any failure of any party to comply
with any obligation, agreement or condition hereunder may only be waived in
writing by the other party, but such waiver shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. No failure by any
party to take any action against any breach of this Agreement or default by the
other party shall constitute a waiver of such party's right to enforce any
provision hereof or to take any such action.
(g) Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, their respective
subsidiaries and, subject to Section 11(b) hereof, their respective successors
and assigns, and nothing in this Agreement, express or implied, is intended to
confer upon any other person any rights or remedies of any nature whatsoever
under or by reason of this Agreement.
(h) Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all of which together shall constitute one and the same instrument. E&S shall
execute this Agreement on behalf of itself and all of the E&S
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Subsidiaries and Evenflo shall execute this Agreement on behalf of itself and
all of the Evenflo Subsidiaries.
(i) Headings; Pronouns and Conjunctions. The section and other
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Unless
otherwise indicated herein or the context otherwise requires, the singular shall
include the plural and the plural shall include the singular.
The word "or' shall not be deemed inclusive.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of August 20, 1998.
EVENFLO & SPALDING HOLDINGS CORPORATION
By:
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Name:
Title:
EVENFLO COMPANY, INC.
By:
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Name:
Title:
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