Exhibit 10.24
FORM OF
TAX SHARING AGREEMENT
This Tax Sharing Agreement (the "Agreement"), dated as of this 12th day
November, 1996, and effective for consolidated federal income tax returns filed
after June 30, 1996, is entered into by and among The Allstate Corporation
("Parent") and the undersigned corporations, as includible corporations in the
affiliated group (the "Allstate Group") of which Parent is the common parent (as
such terms are used or defined in section 1504 of the Internal Revenue Code of
1986 (the "Code")).
WHEREAS the Allstate Group has filed a consolidated federal income tax
return for the taxable year ended December 31, 1995 and intends to continue
filing consolidated federal income tax returns in subsequent years; and
WHEREAS the parties hereto desire to enter into this agreement to fairly
allocate among themselves the federal tax liabilities, credits, refunds,
benefits, and similar items related to the consolidated federal income tax
return for the taxable year ended December 31, 1995 and subsequent years;
NOW, THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
ARTICLE I - REGULAR TAX
1.1 Subject to the adjustments provided in section 1.2 of this Agreement,
the regular federal income tax liability of each member shall be determined
pursuant to the principles used to determine earnings and profits under section
1552(a)(2) of the Code and Treasury Regulation section 1.1502-33(d)(3) using a
fixed percentage of one hundred. Accordingly, each member shall, subject to the
adjustments in section 1.2, generally be liable for the amount of tax it would
ordinarily pay on a separate return basis.
1.2 In determining the separate return tax liability of each member for
purposes of this Article, only the regular tax liability (without regard to the
alternative minimum tax or alternative minimum tax credits) shall be taken into
account. Additionally, items of income, deductions, credits and other similar
items that may be limited or recharacterized on a consolidated basis (e.g.,
foreign tax credits, charitable contributions, section 1231 gains, etc.) shall
be included in the determination of separate return liability as so limited or
recharacterized. For purposes of this determination, any item that is limited on
a consolidated basis shall be allocated to each member according to the ratio of
(i) the amount of such item
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generated by a member to (ii) the total amount of such items generated by the
Allstate Group.
ARTICLE II - ALTERNATIVE MINIMUM TAX
2.1 If the Allstate Group has an alternative minimum tax ("AMT") liability
for any year, such liability shall be allocated to each member according to the
ratio of (i) the excess of any member's separate return tentative minimum tax
for the year (whether such amount is positive or negative) over the member's
separate return regular tax for such year (whether such amount is positive or
negative) to (ii) the sum of such excess amounts for all members of the group.
In determining each member's tentative minimum tax and regular tax, the
adjustments provided in section 1.2 of this Agreement shall be made.
2.2 AMT credits originating in a tax year shall be allocated to each member
according to the amount of AMT liability allocated for such year. Utilization of
such credits shall be determined on a FIFO basis (i.e., AMT credits from the
earliest available year shall be deemed utilized before credits from a later
year are utilized). If only part of the amount of AMT paid for any year is
utilized as a credit, such amount shall be allocated to the members in
proportion to the amounts of AMT liability allocated to members for such year.
ARTICLE III - OTHER TAXES AND CREDITS
Other taxes (e.g., the environmental tax), credits (e.g., the foreign tax
credit or the general business credit) or similar items paid, incurred or
received by the Allstate Group shall be allocated to each member according to
the ratio of the amount of any such item generated by the member on a separate
return basis to the total of such item generated on a separate return basis by
all members of the Allstate Group.
ARTICLE IV - TAX RETURN ADJUSTMENTS
4.1 As agent for the Allstate Group, Parent shall have the right to control
in its sole discretion any audit of returns filed by the Group. However, Parent
shall, in its reasonable discretion, permit any member that might have a
liability or refund as a result of an adjustment to participate in the
proceedings relating to such issue. In the event any member of the group wishes
to amend its portion of any filed return, Parent shall have discretion, taking
into account the consequences to the entire group, to file an amended return, to
present the adjustments to be included on such amended return at the audit of
the consolidated return to which the adjustments relate, or to take any other
reasonable action.
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4.2 In the event of adjustments to taxes (as a result of audits, filing of
amended returns, carrybacks, or other similar items), allocations under this
Agreement shall be redetermined as if the adjustments were included in the
returns as originally filed. Interest or penalties related to such adjustments
shall be allocated to the member which generated the adjustment.
4.3 In the event an adverse adjustment with respect to income or items of
one member is offset by a favorable adjustment for another member, thereby
resulting in either a smaller deficiency for the Allstate Group or smaller
refund for the group, the member with the adverse adjustment shall pay interest
at the overpayment rate specified in section 6621(a)(1) to the member with the
favorable adjustment to compensate the member with the favorable adjustment for
interest not received from the Government as a result of the adverse adjustment.
4.4(a) Any member may make a deposit or payment of any tax liability to
stop the running of interest by paying such amount to Parent and providing
written directions to transfer the amount to the Government. Parent shall
transfer the amount as so directed as soon as practical but in no event later
than fifteen business days after the amount has been received by Parent.
Notwithstanding the foregoing, Parent may refuse to deposit any such amount with
the Government if Parent determines in its sole discretion that it is not in the
best interest of the group, taken as a whole, to make such a deposit. In such an
event, Parent shall inform the member of its decision and return the amount
received within fifteen business days of receipt.
(b) In the event a member which has made a deposit in the nature of a
cash bond (the "original depositing member") wishes to secure a return of such
deposit, such member shall notify Parent of its desire to have the deposit
returned. Within ten business days of such notification, Parent shall determine
whether other members of the Allstate group might utilize such deposit. Parent
shall within such period notify any members who might have use of such deposit,
and, if such members desire to assume all or any portion of the deposit, the
members shall inform Parent within ten business days of notification of the
amount of the deposit they wish to assume. Parent shall allocate the deposit
among the members wishing to assume the deposit within twenty-five business days
of the receipt of the notice from the original depositing member. If more than
one member wishes to assume all or part of the deposit and the amounts requested
to be assumed exceed the amount of the available deposit, Parent shall allocate
the deposit to members in its reasonable discretion. Within five business days
after allocation of the deposit to assuming members, such members shall pay to
the original depositing member the respective portion of the deposit they
assumed. Thereafter, the assuming member shall be treated as the original
depositing member with respect to the
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portion of the deposit assumed. To the extent a deposit is not assumed under
this procedure, Parent shall within thirty business days of the receipt of the
notice from the original depositing member take steps to secure the return of
the deposit, and shall pay to the original depositing member the amount returned
from the Government within three business days of receipt by Parent. Parent
shall not be liable for any failure to identify a member as a potential user of
the original depositing member's deposit or for any delays in securing the
return of a deposit.
(c) In the event a deposit is applied by the Government to a liability
of the Allstate Group without the consent of the original depositing member
(such event is hereinafter referred to as a "misapplication" of the deposit),
the member receiving the benefit of the misapplication of the deposit shall
within fifteen business days of receipt of the earlier of actual knowledge of
the misapplication of the deposit or notice from Parent of the misapplication of
the deposit pay to the original depositing member (i) the amount of the deposit
so misapplied and (ii) any interest saved by such member as a result of the
misapplication of the deposit. If the member whose deposit was misapplied incurs
additional interest costs (in excess of the interest paid pursuant to the
previous sentence) that would not have been incurred absent the misapplication
of the deposit, the member receiving the benefit of the misapplication shall
also be liable to the original depositing member for such additional interest
costs. The amount of such interest shall not exceed the interest incurred for
the period from the time the deposit was originally made until the payment was
made to the original depositing member pursuant to the first sentence of this
subparagraph.
ARTICLE V - CARRYFORWARDS
The utilization of any carryforwards available to the Allstate Group and
not expressly covered elsewhere in this Agreement shall be determined under the
principles of the consolidated return regulations in effect at the time the
carryforwards are used by the group.
ARTICLE VI - RETURNS AND PAYMENTS
6.1 Information required from members for the completion of tax returns
(including estimated payments, extensions of time, and other required filings)
shall be provided by each member according to the schedule reasonably determined
by Parent. Payments of tax or liabilities allocated hereunder shall be made at
the time and in the manner reasonably determined by Parent. Settlements of tax
payments or refunds hereunder may at the reasonable discretion of Parent be made
on an estimated basis, but final settlement for any return filed shall be made
no later than 30 days after such return is filed except that, where a refund is
due from the Government to the Parent, payment by the
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parent to the appropriate member shall be made within 5 business days of the
receipt of the refund. Parent may, in the interest of convenience, net payments
due to and from a member or make payment to a member's direct or indirect
parent, which shall then promptly make payment to the appropriate member. All
payments shall be made in immediately available funds.
6.2 To the extent permitted by law, all tax returns shall be filed using
accounting methods and practices consistent with those used in prior periods.
ARTICLE VII - ALLSTATE LIFE OF placeStateNEW YORK
7.1 This article shall apply solely with respect to the allocation and
settlement of federal tax liabilities between Parent and Allstate Life Insurance
Company of placeStateNew York ("ALICNY"). The other provisions of this Agreement
shall continue to apply to ALICNY except to the extent they are inconsistent
with the provisions of this Article VII.
7.2 The method of allocating tax liability provided in other articles of
this Agreement are intended to comply with part (B) of paragraph 3 of
placeStateNew York Insurance Department Circular Letter No. 33 (the "Circular").
To the extent the other articles of this Agreement result in a tax charge to
ALICNY greater than the amount ALICNY would have paid if it had filed a separate
return (as defined in paragraph 4 of the Circular), the amount due from ALICNY
shall be limited to the separate return amount. To the extent the other articles
of this Agreement provide for a payment to ALICNY for credits (as defined in
part B of paragraph 3 of the Circular) generated by ALICNY in an amount less
than the savings actually generated by the use of such credits on a consolidated
basis, such payment shall be increased to the amount of the savings generated on
a consolidated basis.
7.3 In order to help assure ALICNY's right to recoup federal taxes in the
event of future net losses, Parent shall establish and maintain an escrow
account consisting of assets eligible as an investment by ALICNY in an amount
equal to the excess of the amount paid hereunder by ALICNY to Parent for any
year over the actual payment made by Parent to the Government for such year.
Escrow assets may be released to Parent at such time as the permissible period
for loss carrybacks has expired.
7.4 All settlements under this Agreement shall be in cash or securities (at
market value) eligible as investments for ALICNY. ALICNY agrees to record on its
books payments received hereunder as contributed surplus.
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7.5 This Agreement shall be terminated with respect to ALICNY if (a) the
parties agree in writing to such termination, (b) ALICNY's membership in the
affiliated group or consolidated group ceases or is terminated for any reason,
or (c) the affiliated group fails to file a consolidated return for any taxable
year. Notwithstanding the termination of the Agreement, the provisions of this
Agreement shall remain in effect for any time period during the taxable year in
which termination occurs for which the income of the terminating party must be
included in the consolidated return. Additionally, notwithstanding the
termination of this agreement, all materials, including, but not limited to,
returns, supporting schedules, workpapers, correspondence and other documents
related to the consolidated return shall be made available to and by ALICNY
during regular business hours.
7.6 This Agreement shall not be assignable without the prior written
consent of the other parties hereto.
7.7 ALICNY and Parent agree to negotiate in good faith to settle any
dispute involving the interpretation of this Agreement. If any such dispute
cannot be settled, such dispute shall be submitted to binding arbitration as
follows:
(a) Parent and ALICNY shall select an arbitrator, who is a partner at a
national accounting firm that has not represented either party in the
preceding five years. If the parties are unable to agree upon an
arbitrator, Parent's independent accountant shall select as the
arbitrator a partner at a national accounting firm that has not
represented either party in the preceding five years.
(b) The arbitration shall be conducted pursuant to the rules of the
American Arbitration Association.
(c) The decision of the arbitrator shall be final and binding on Parent
and ALICNY.
(d) Parent and ALICNY agree to pay their own costs of the arbitration
proceeding, except that costs and fees of the arbitrator shall be
shared equally.
7.8 To the extent that this Agreement pertains to ALICNY, it shall be
governed under the laws of the State of placeStateNew York.
ARTICLE VIII - MISCELLANEOUS
8.1 Any dispute with respect to the interpretation of this Agreement or the
treatment of any tax item not expressly covered by this Agreement shall be
conclusively determined by Parent
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according to the basic principles of this Agreement.
8.2 All parties shall cooperate in the exchange of information needed to
fulfill the purposes of this Agreement. Each member agrees to cause its proper
officers and employees to execute documents, statements, elections,
certificates, schedules, and other similar items deemed necessary by Parent in
order to carry out the intent of the provisions of applicable law and
regulations.
8.3 This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns. No assignment, however,
shall relieve any party's obligations hereunder without the consent of the other
parties.
8.4 Each member that acquires after the date of this Agreement an ownership
interest in an entity that results in such entity becoming a member of the
Allstate Group shall promptly cause such entity to adopt the provisions of this
Agreement.
8.5 This Agreement may be modified only by written agreement of members
affected by the modification. This Agreement shall be terminated with respect to
any member as of the end of the day on which such member ceases to be a member
of the Allstate Group, provided, however, that such member shall be subject to
the obligations, duties and other terms and conditions of this Agreement for any
period in which the terminating member's items were included in the consolidated
federal income tax return of the Allstate Group. To the extent a company whose
items of income and loss were included in the consolidated federal income tax
return of the Allstate Group is determined not to be an includible member of the
Allstate Group, this Agreement shall not apply to such company for any period in
which it is not an includible member, and any payments, liabilities incurred,
benefits received and other similar items under this Agreement shall be
redetermined and repaid in a fair and equitable manner.
8.6 This Agreement shall be governed under the laws of the State of
placeStateIllinois, except as provided otherwise in section 7.8 of this
Agreement.
8.7 This Agreement may be executed in counterparts, each of which shall be
considered an original.
IN WITNESS HEREOF, the parties have executed this Agreement on the date
indicated:
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The Allstate Corporation
By Date
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[Various Allstate Affiliates]
