Exhibit 10.44
TAX INDEMNIFICATION AGREEMENT
This Tax Indemnification Agreement (the "Agreement") is made and
entered into on ______________________, 2004 by and between Radiation Therapy
Services, Inc., a Florida corporation (the "Company") and each shareholder of
the Company (the "Shareholders"). Intending to be legally bound, the parties
agree as follows:
1. Background and Purpose. Since its organization, the Company
has elected pursuant to Section 1362 of the Internal Revenue Code of 1986, as
amended (the "Code") to be taxed as an S corporation for federal tax purposes.
In connection with the public offering of stock of the Company, the Company will
revoke its S election effective one or more days prior to the closing of the
public offering. The purpose of this Agreement is to establish the manner in
which the Company's income for the final year of its S election will be
allocated, provide for cash distributions to the Shareholders with respect to
the Company's income that is taxable to them, and establish a procedure for
dealing with future audits or proposed adjustments to the taxable income of the
Company made by the Internal Revenue Service or any other governmental authority
(a "Taxing Authority").
2. S Termination Year Income. The Shareholders have elected
pursuant to Section 1362(e)(3) of the Code to determine the Company's income for
the S short year and the C short year under normal tax accounting rules.
3. Designation of Shareholder Representative. The Shareholders
hereby designate ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D. as their representative to take any
action on their behalf that requires the consent or approval of the Shareholder
Representative pursuant to this Agreement. The Shareholders may change the
Shareholder Representative by giving the Company notice of that change signed by
Shareholders owning a majority of the shares owned by all Shareholders.
4. Audits and Administrative Adjustments. If a taxing authority
proposes to adjust the Company's taxable income for any year during which it was
taxed as an S corporation or proposes to audit the Company's tax return(s) for
any such year, the Company will provide a copy of the proposed adjustment or
notice to the Shareholder Representative. Shareholders will provide any
information that the Company may reasonably request and cooperate with the
Company in connection with the Company's efforts to respond to the proposed
adjustment or contest the proposed audit. The Company will provide the
Shareholder Representative with copies of all correspondence, document requests
and other information received from or provided to the Taxing Authority in
connection with the proposed adjustment or audit. Any cost incurred by the
Company and the Shareholder Representative related to the proposed adjustment or
audit will be the sole cost and expense of the Company. The Company will provide
the Shareholder Representative with a copy of any settlement or final
determination that the Company intends to accept at least ten business days
prior to the date the Company intends to accept such settlement. If the
Shareholder Representative determines that such settlement is not in the best
interest of the Company, the Shareholder Representative may notify the Company
that the Shareholders intend to further contest the proposed adjustment or audit
provided the Shareholder Representative agrees, on behalf of all of the
Shareholders, to indemnify the
Company from any cost or expense that the Company may incur in excess of the
amount that the Company would incur under the proposed settlement that it
desires to accept. If the Shareholder Representative does not so notify the
Company within the ten-day period, the Company may accept the settlement.
5. Distributions. On or before December 31, 2004, the Company
will make a cash distribution to the Shareholders equal to 35% of the net
taxable income of the Company allocable to the Shareholders and any former
shareholders of the Company (a "Former Shareholder") with respect to the S short
year, as defined in Section 1362(e)(1)(A) of the Code, less any prior
distributions made by the Company with respect to that taxable income. Further,
if in connection with the preparation of the tax return for the C short year the
Company's taxable income for the S short year is increased or any adjustment of
the type described in Section 4 of this Agreement occurs that results in an
increase in the net income of the Company that is allocable to the Shareholders
or any Former Shareholder, within 30 days after the amount of the adjustment to
the S short year or the amount of the Section 4 adjustment is finally
determined, the Company will distribute to each Shareholder and Former
Shareholder a cash distribution equal to 35% of the amount by which the
cumulative net taxable income of the Shareholder or Former Shareholder for all
years subject to the adjustment is increased.
6. Gross-up Distributions. If any distribution received by a
Shareholder or Former Shareholder pursuant to Section 5 is currently taxable
either as a taxable distribution of the Company's earnings and profits pursuant
to Section 301(c) of the Code or otherwise, the Company will make a gross-up
distribution to the recipients determined pursuant to the following formula:
GUD = T1 x T1%
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1 - T2%
Where:
GUD = Amount of the gross-up distribution
T1 = Taxable amount of the initial distribution
T1% = Highest marginal federal income tax rate applicable to the
taxable portion of the initial distribution
T2% = Highest marginal federal income tax rate applicable to the
taxable portion of the gross-up distribution
7. Extension of Filing Date. In order to maximize the post
termination transition period described in Section 1377(b) of the Code, the
Company will extend the due date of its tax returns for the S short year and C
short year until September 15, 2005 and will not file such returns prior to that
date without the consent of the Shareholder Representative.
8. Retention of Records; Statute of Limitations. The Company
agrees to retain all appropriate records that may affect the determination of
the Company's taxable income for any S corporation year that is not closed by
the applicable statute of limitations. Each Shareholder agrees to retain
appropriate records to substantiate that he or she has been an eligible
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S corporation shareholder at all times during any S corporation year that is
not closed by the applicable statute of limitations.
The Company and the Shareholders will notify the other in writing of
any waivers or extensions of the applicable statute of limitations that may
affect the period for which any records must be maintained.
9. Successors. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
10. Assignment. No party to this Agreement may assign or delegate
its rights or duties under this Agreement without the prior written consent of
the Shareholder Representative if the Company desires to make an assignment or
the Company if a Shareholder desires to make an assignment. Notwithstanding the
foregoing, the rights of a Shareholder hereunder shall inure to the benefit of
any subsequent owner of all of part of the Shareholder's shares.
11. Notices. All notices, requests, claims and other
communications hereunder shall be in writing and shall be given or made by hand
delivery, by reputable overnight courier service, with all shipping charges
prepaid, return receipt requested, by facsimile, or by registered or certified
mail, postage prepaid, return receipt requested to the following addresses:
If to the Company: Radiation Therapy Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to the Shareholders: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Any notice given by hand delivery, overnight courier service or registered or
certified mail shall be deemed given upon delivery and any notice given by
facsimile transmission will be deemed delivered on the day of transmission
provided telephone confirmation of receipt is obtained promptly after completion
of the transmission. Either party may change the address to which notice is
given by giving notice to the other party of the change of address.
12. Amendment. This Agreement will not be amended or modified
except by a written instrument signed by Shareholders owning 75% of the
Company's shares held by all Shareholders who continue to hold Company shares
and the Company.
13. Governing Law. This Agreement shall be construed and enforced
pursuant to the laws of the State of Florida.
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14. Severability. If any term or other provision of this Agreement
is determined to be invalid, illegal or incapable of being enforced by any law
or public policy, all other terms and provisions of this Agreement shall remain
in full force and effect so long as the economic or legal substance of the
remaining obligations contemplated by this Agreement are not affected in any
manner that is materially adverse to any party. If any term or provision of this
Agreement is determined to be invalid, illegal or incapable of being enforced,
the parties agree to negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a manner
that will not be invalid, illegal or incapable of being enforced.
The parties have cause this Agreement to be executed as of the date
indicated above.
Radiation Therapy Services, Inc.
By
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Its
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by the Entireties with ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Entireties with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
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