TAX ALLOCATION AGREEMENT
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THIS AGREEMENT is made as of June 1, 1999 between Thermo Electron
Corporation, a Delaware corporation ("Thermo Electron"), and ThermoLase
Corporation, a Delaware corporation ("ThermoLase").
Preliminary Statement
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Thermo Electron is the parent of an affiliated group of corporations
(including ThermoLase) within the meaning of Section 1504(a) of the Internal
Revenue Code of 1986, as amended (the "Code").
Thermo Electron owns more than 80% of the issued and outstanding shares
of voting common stock of ThermoLase, including the units of common stock
coupled with a right to redeem such stock in April 2001, the only stock that
ThermoLase is authorized to issue. ThermoLase is required to file consolidated
federal income tax returns with Thermo Electron.
Thermo Electron is the common parent of an affiliated group of
corporations and ThermoLase recognizes that any one of them that sustains a net
operating loss or otherwise generates beneficial tax attributes for a taxable
period may be deprived of such benefits when offset in that or other periods
against income or tax liabilities of the others.
By this Agreement, the parties desire to set forth the understanding
they have reached with respect to the filing of the consolidated United States
federal and state income tax returns. Foreign tax returns are not subject to
this Agreement.
Agreements
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IT IS MUTUALLY agreed by the parties hereto as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 The term "Thermo Electron Group" means the group of corporations of
which Thermo Electron is common parent and with which Thermo Electron files a
consolidated federal income tax return, excluding ThermoLase and subsidiaries of
ThermoLase that may exist now or in the future. For purposes of this Agreement,
the Thermo Electron Group shall be treated as a single corporate entity. The
Thermo Electron Group and ThermoLase and its subsidiaries, respectively, are
sometimes herein referred to collectively as the "Companies," and each of the
Companies is referred to herein as a "Company."
1.2 The paragraph titles used herein are for convenience of reference
only and will not be considered in the interpretation or construction of any of
the provisions hereof. Words may be construed in the singular or the plural as
the context requires.
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2. TAX RETURNS.
2.1 FEDERAL TAX RETURNS. Thermo Electron as the common parent will
prepare and file or cause to be prepared and filed federal income tax returns on
a consolidated basis, for the Thermo Electron Group and ThermoLase and its
subsidiaries for all fiscal periods as to which a consolidated return is
appropriate in accordance with the terms of this Agreement. ThermoLase will
reimburse Thermo Electron for its portion of the tax. Such reimbursement will be
the tax ThermoLase would have paid on a separate return basis.
2.2 STATE TAX RETURNS. Thermo Electron as the common parent will
prepare and file or cause to be filed state income tax returns on a combined,
consolidated, or unitary basis, or using any other allowable method that Thermo
Electron believes will result in a lower overall tax liability to the Companies.
ThermoLase will reimburse Thermo Electron for its portion of the tax. Such
reimbursement will be the tax ThermoLase would have paid on a separate return
basis, but only if it was required to file a return in that state.
3. TIME OF PAYMENT OF FEDERAL TAX OBLIGATIONS TO OR BY THERMO ELECTRON.
The obligations of the Companies for Federal income tax payments will be
determined and paid as follows:
(a) Not later than the 15th day after the end of the fourth, sixth,
ninth and twelfth months of each consolidated taxable year of Thermo Electron,
Thermo Electron will make a reasonable determination (consistent with the
provisions of Section 6655 of the Code) of the separate federal income tax
liability that ThermoLase would be required to pay as estimated payments on a
separate return basis for that period. ThermoLase shall pay to Thermo Electron
the amount of such liability within ten days after receipt of notification of
such determination.
(b) After the end of Thermo Electron's fiscal year and before the 15th
day of the fourth month thereafter, ThermoLase will promptly pay to Thermo
Electron the entire amounts estimated to be due and payable under ThermoLase's
federal income tax return as if filed on a separate return basis, less all
amounts previously paid with respect to that year pursuant to subparagraph (a)
of this Paragraph 3.
(c) If upon the filing of the consolidated income tax return, a revised
calculation is made in the manner set forth in subparagraph (b) of this
Paragraph 3, and it is determined that ThermoLase has paid to Thermo Electron
with respect to the consolidated taxable year an amount greater than that
required by Paragraph 3(b), then that excess will be promptly paid by Thermo
Electron to ThermoLase or applied against the next estimated tax due; and if it
is determined that ThermoLase has paid an amount that is less than that
required, then ThermoLase will promptly pay such deficiency to Thermo Electron.
4. TAX OBLIGATIONS OF THERMO ELECTRON. Thermo Electron will pay the
consolidated tax liabilities of the Companies arising from filing a consolidated
federal income tax return.
5. PAYMENT OF FUNDS BY THERMO ELECTRON. If in any year the Companies
incur a loss, Thermo Electron shall pay to ThermoLase a sum equal to the amount
of benefit realized by Thermo Electron that is attributable to the tax loss
incurred by ThermoLase. Payments due to
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ThermoLase from Thermo Electron under this section shall be made promptly
following the realization and receipt of such tax benefits by Thermo Electron.
6. CHANGES IN PRIOR YEAR'S TAX LIABILITIES. In the event that the
consolidated tax liability or the separate tax liability referred to in
Paragraphs 3 and 5 hereof for any year for which a consolidated tax return for
the Companies was filed is increased or decreased by reason of filing an amended
return or returns (including carry-back claims), or by reason of the examination
of the returns by the Internal Revenue Service, the amounts due Thermo Electron
for payment of taxes under Paragraph 3 hereof, and the amount to be paid under
Paragraph 5 hereof for each such year will be recomputed by Thermo Electron to
reflect the adjustments to taxable income and tax credits for the taxable year
and interest or penalties, if any. In accordance with those recomputations,
additional sums will be paid by ThermoLase to Thermo Electron or paid by Thermo
Electron to ThermoLase regardless of whether a member has become a Departing
Member (as defined in Paragraph 8 hereof) subsequent to the taxable year of
recomputation.
7. NEW MEMBERS. ThermoLase agrees that if, subsequent to the execution
of this Agreement, Thermo Electron becomes the parent, as that term is used in
Section 1504 of the Code, of one or more subsidiary corporations, in addition to
ThermoLase, then each newly acquired subsidiary corporation may become a
separate party to this Agreement by consenting in writing to be bound by its
provisions, effective immediately upon its delivery to Thermo Electron, but the
income, deductions and tax credits of the newly acquired subsidiary corporations
will first be included in the consolidated federal income tax return as required
by the Code.
8. DEPARTING MEMBERS.
8.1 The term "Departing Member," as used herein, will mean a Company
that is no longer permitted under the Code to be included in the consolidated
federal income tax return.
8.2 In applying this Agreement to a Departing Member for the final
taxable year in which its income, deductions, and tax credits are required to be
included in the consolidated federal income tax return: (i) the amount required
to be paid by a Departing Member under the provisions of Paragraph 3 hereof and
(ii) the amount that the Departing Member is entitled to receive under the
provisions of Paragraph 5 hereof, will be determined by taking into account the
income, deductions and tax credits of the Departing Member only for the
fractional part of such year as the Departing Member was a member of the
consolidated group and included in the consolidated federal income tax return.
8.3. After the filing of the consolidated federal income tax return for
the last taxable year that the Departing Member was included therein, the
Departing Member will be informed of the amount of consolidated carry-overs as
of the end of the taxable year or period which are attributable to the Departing
Member, as provided by Treasury Regulations Section 1.1502-79 or otherwise,
including the agreement of the parties.
9. DETERMINATION OF SUMS DUE FROM AND PAYABLE TO MEMBERS. Thermo
Electron will determine the sums due from and payable to ThermoLase under the
provisions of this Agreement
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(including the determination for purposes of Paragraph 6 hereof). ThermoLase
agrees to provide Thermo Electron with such information as may reasonably be
necessary to make these determinations. Issues arising in the course of the
determinations that are not expressly provided for in this Agreement will be
resolved in an equitable manner.
10. TAX CONTROVERSIES. If a consolidated federal income tax return for
any taxable year during which this Agreement is in effect is examined by the
Internal Revenue Service, the examination, as well as any other matters relating
to that tax return, including any tax litigation, will be handled solely by
Thermo Electron. ThermoLase will cooperate with Thermo Electron and to this end
will execute protests, petitions, and any other documents as Thermo Electron
determines to be necessary or appropriate. The cost and expense of Thermo
Electron's handling of a tax controversy, including legal and accounting fees,
will be allocated to and paid by the Company to which the tax controversy
relates. If the tax controversy relates to both Thermo Electron and ThermoLase,
the cost and expense will be allocated between Thermo Electron and ThermoLase in
the proportion that such Company's potential additional tax liability bears to
the total potential additional tax liability of the Companies (determined in
accordance with Paragraph 6 hereof and assuming that the tax controversy is
resolved in favor of the Internal Revenue Service) for the taxable year in
issue. If the tax controversy encompasses more than one taxable year, Thermo
Electron will first allocate the cost and expense to each taxable year in the
proportion that the potential additional tax liability for each taxable year
bears to the total potential additional tax liability for the taxable years in
issue.
11. EFFECTIVE DATE. This Agreement shall be effective beginning as of
the date of this Agreement, and will continue on a year-to-year basis thereafter
with respect to ThermoLase for so long as ThermoLase is permitted to file a
consolidated federal income tax return with Thermo Electron.
12. STATE TAXES. ThermoLase will jointly file any state tax return
using a combined, consolidated, unitary, or other allowable method that Thermo
Electron determines results in a lower overall tax liability to the Companies.
In the event that said state tax returns shall be filed, the provisions of
sections 1 through 11 hereof shall apply, mutatis mutandis (the necessary
changes being made) to the allocation, preparation, filing and payment related
to such state taxes and tax returns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
THERMO ELECTRON CORPORATION THERMOLASE CORPORATION
By: s/Xxxx Xxxxx-Xxxxxxx By: s/Xxxxxx Xxxxxxx
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Name: Xxxx Xxxxx-Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer Title: President and CEO
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