EXHIBIT 10.12
TAX SHARING AGREEMENT
BETWEEN
SERACARE, INC.
AND
SERACARE LIFE SCIENCES, INC.
JUNE 10, 2001
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Action..................................................................................... 1
Section 1.2 Ancillary Agreements....................................................................... 1
Section 1.3 Code....................................................................................... 1
Section 1.4 Disputes................................................................................... 1
Section 1.5 Distribution............................................................................... 1
Section 1.6 Distribution Date.......................................................................... 1
Section 1.7 Final Determination........................................................................ 1
Section 1.8 Income Tax................................................................................. 2
Section 1.9 Income Tax Liability....................................................................... 2
Section 1.10 Income Tax Return.......................................................................... 2
Section 1.11 Indemnified Party.......................................................................... 2
Section 1.12 Indemnifying Party......................................................................... 2
Section 1.13 IRS........................................................................................ 2
Section 1.14 Merger..................................................................................... 2
Section 1.15 Merger Agreement........................................................................... 2
Section 1.16 Person..................................................................................... 2
Section 1.17 Post-Distribution Tax Attribute............................................................ 3
Section 1.18 Post-Distribution Taxable Period........................................................... 3
Section 1.19 Pre-Distribution Tax Attribute............................................................. 3
Section 1.20 Pre-Distribution Taxable Period............................................................ 3
Section 1.21 Proceeding................................................................................. 3
Section 1.22 Refund..................................................................................... 3
Section 1.23 Separation Agreement....................................................................... 3
Section 1.24 SeraCare Consolidated Federal Return....................................................... 3
Section 1.25 SeraCare Consolidated Group................................................................ 3
Section 1.26 SeraCare Consolidated Returns.............................................................. 3
Section 1.27 SeraCare Consolidated Return Period........................................................ 3
Section 1.28 SeraCare Consolidated Tax Liability........................................................ 4
Section 1.29 SeraCare State and Local Returns........................................................... 4
Section 1.30 Subsidiary................................................................................. 4
Section 1.31 Tax Attribute.............................................................................. 4
Section 1.32 Taxing Jurisdiction........................................................................ 4
Section 1.33 Life Sciences.............................................................................. 4
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TABLE OF CONTENTS
(continued)
Page
ARTICLE II
PREPARATION AND FILING OF TAX RETURNS; PAYMENT OF TAX
Section 2.1 Federal Returns of SeraCare............................................................ 4
Section 2.2 State and Local Returns of SeraCare.................................................... 5
Section 2.3 Income Tax Liability................................................................... 6
Section 2.4 Life Sciences Separate Returns and Income Tax Liability................................ 6
ARTICLE III
INDEMNIFICATION FOR INCOME TAXES
Section 3.1 Indemnification by SeraCare............................................................ 6
Section 3.2 Indemnification by Life Sciences....................................................... 6
ARTICLE IV
INCOME TAX CONTESTS
Section 4.1 Notification........................................................................... 7
Section 4.2 Proceedings Involving SeraCare......................................................... 7
Section 4.3 Power of Attorney...................................................................... 7
ARTICLE V
APPORTIONMENT OF TAX ATTRIBUTES; REFUNDS; TAX SHARING AGREEMENTS
Section 5.1 Apportionment of Tax Attributes........................................................ 8
Section 5.2 Refunds................................................................................ 8
Section 5.3 Carrybacks............................................................................. 8
Section 5.4 Retention of Carryovers................................................................ 8
Section 5.5 Tax Sharing Agreements................................................................. 8
ARTICLE VI
COOPERATION AND EXCHANGE OF INFORMATION
Section 6.1 Cooperation............................................................................ 8
Section 6.2 Retention of Records................................................................... 9
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VII
PAYMENTS
Section 7.1 Method of Payment...................................................................... 9
Section 7.2 Interest............................................................................... 9
Section 7.3 Characterization of Payments........................................................... 10
Section 7.4 Time of Indemnification Payment........................................................ 10
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Entire Agreement....................................................................... 10
Section 8.2 Dispute Resolution..................................................................... 10
Section 8.3 Governing Law.......................................................................... 10
Section 8.4 Notices................................................................................ 10
Section 8.5 Agent.................................................................................. 10
Section 8.6 Amendment.............................................................................. 11
Section 8.7 Counterparts........................................................................... 11
Section 8.8 Binding Effect; Assignment............................................................. 11
Section 8.9 Severability........................................................................... 11
Section 8.10 Waiver of Breach....................................................................... 11
Section 8.11 Amendment and Execution................................................................ 11
Section 8.12 Authority.............................................................................. 11
Section 8.13 Descriptive Headings................................................................... 11
Section 8.14 Gender and Number...................................................................... 12
Section 8.15 Additional Assurances.................................................................. 12
Section 8.16 Force Majeure.......................................................................... 12
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TAX SHARING AGREEMENT
This Tax Sharing Agreement (this "Agreement") is entered into as of
June 10, 2001, by and between SeraCare, Inc., a Delaware corporation
("SeraCare"), and SeraCare Life Sciences, Inc., a California corporation and
wholly-owned subsidiary of SeraCare ("Life Sciences"). SeraCare and Life
Sciences are sometimes referred to herein individually as a "party" or
collectively as the "parties."
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger dated June 10,
2001 (the "Merger Agreement") by and between SeraCare, Instituto Grifols, S.A.,
a company organized under the laws of Spain ("Grifols"), and SI Merger Corp., a
Delaware corporation and wholly-owned subsidiary of Grifols, Grifols will
acquire all of the outstanding stock of SeraCare by merging SI Merger Corp. with
and into SeraCare (the "Merger");
WHEREAS, as a condition of, and immediately prior to, the Merger,
SeraCare will declare a pro rata distribution to its stockholders of all of the
capital stock of Life Sciences (the "Distribution");
WHEREAS, at the close of the business on the date the Distribution is
effective, Life Sciences will cease to be a member of the SeraCare Consolidated
Group (as defined below); and
WHEREAS, as a result of the Distribution the parties hereto wish to
provide for the payment of Income Taxes (as defined herein) and entitlement to
refunds thereof, allocate responsibility and provide for cooperation in
connection with the filing of returns in respect of Income Taxes, and provide
for certain other matters relating to Income Taxes.
NOW, THEREFORE, in consideration of the agreements herein contained and
intending to be legally bound hereby, SeraCare and Life Sciences hereby agree as
follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement the following capitalized terms are
defined in this Article I.
Section 1.1 Action. "Action" means any action, claim, suit,
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arbitration, inquiry, proceeding or investigation by or before any court, any
governmental, regulatory or other administrative agency or commission or any
arbitration tribunal.
Section 1.2 Ancillary Agreements. "Ancillary Agreements" has the
--------------------
meaning set forth in Section 2.1 of the Separation Agreement.
Section 1.3 Code. "Code" means the Internal Revenue Code of 1986, as
----
amended.
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Section 1.4 Disputes. "Disputes" has the meaning set forth in Section
--------
7.6 of the Separation Agreement.
Section 1.5 Distribution. "Distribution" has the meaning set forth in
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the Recitals hereof.
Section 1.6 Distribution Date. "Distribution Date" has the meaning set
-----------------
forth in Section 3.2(a) of the Separation Agreement.
Section 1.7 Final Determination. "Final Determination" means the final
-------------------
resolution of liability for any Income Tax, which resolution may be for a
specific issue or adjustment or for a taxable period: (i) by Internal Revenue
Service Form 870 or 870-AD (or any successor forms thereto), on the date of
acceptance by or on behalf of the taxpayer, or by a comparable form under the
laws of a state or local Taxing Jurisdiction, except that a Form 870 or 870-AD
or comparable form shall not constitute a Final Determination to the extent that
it reserves (whether by its terms or by operation of law) the right of the
taxpayer to file a claim for Refund or the right of the Taxing Jurisdiction to
assert a further deficiency in respect of such issue or adjustment or for such
taxable period (as the case may be); (ii) by a decision, judgment, decree, or
other order by a court of competent jurisdiction, which has become final and
unappealable; (iii) by a closing agreement or accepted offer in compromise under
Sections 7121 or 7122 of the Code, or a comparable agreement under the laws of a
state or local taxing jurisdiction; (iv) by any allowance of a Refund or credit
in respect of an overpayment of Income Tax, but only after the expiration of all
periods during which such Refund may be recovered (including by way of offset)
by the jurisdiction imposing such Income Tax; or (v) by any other final
disposition, including by reason of the expiration of the applicable statute of
limitations or by mutual agreement of the parties.
Section 1.8 Income Tax. "Income Tax" (a) means (i) any foreign or any
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United States federal, state or local tax, charge, fee, impost, levy or other
assessment that is based upon, measured by, or calculated with respect to (1)
net income or profits (including, but not limited to, any capital gains, gross
receipts, or minimum tax, and any tax on items of tax preference, but not
including sales, use, value added, real property gains, real or personal
property, transfer or similar taxes), or (2) multiple bases (including, but not
limited to, corporate franchise, doing business or occupation taxes), if one or
more of the bases upon which such tax may be based, by which it may be measured,
or with respect to which it may be calculated is described in clause (a)(i)(1)
of this definition, in either case, together with any interest and any
penalties, fines, additions to tax or additional amounts imposed by any Taxing
Jurisdiction with respect thereto and (b) shall include any liability in respect
of an amount described in clause (a) of this definition resulting from the
application of Treasury Regulations ss.1.1502-6 or similar provision under state
or local law, or as a transferee.
Section 1.9 Income Tax Liability. "Income Tax Liability" means all
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liabilities for Income Taxes.
Section 1.10 Income Tax Return. "Income Tax Return" means any return,
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report, filing, statement, questionnaire, declaration or other document that has
been or is required to be filed with a Taxing Jurisdiction in respect of Income
Taxes.
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Section 1.11 Indemnified Party. "Indemnified Party" means any Person
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seeking indemnification pursuant to the provisions of this Agreement.
Section 1.12 Indemnifying Party. "Indemnifying Party" means any party
------------------
hereto from which any Indemnified Party is seeking indemnification pursuant to
the provisions of this Agreement.
Section 1.13 IRS. "IRS" means the Internal Revenue Service.
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Section 1.14 Merger. "Merger" has the meaning given that term in the
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Recitals hereof.
Section 1.15 Merger Agreement. "Merger Agreement" has the meaning
----------------
given that term in the Recitals hereof.
Section 1.16 Person. "Person" means any individual, partnership,
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joint venture, limited liability company, corporation, association, joint stock
company, trust, unincorporated organization or similar entity or a governmental
authority or any department or agency or other unit thereof.
Section 1.17 Post-Distribution Tax Attribute. "Post-Distribution Tax
-------------------------------
Attribute" means a Tax Attribute that arises in a Post-Distribution Taxable
Period and can be carried back to a Pre-Distribution Taxable Period.
Section 1.18 Post-Distribution Taxable Period. "Post-Distribution
--------------------------------
Taxable Period" means a taxable period that, to the extent it relates to Life
Sciences and its Subsidiaries, begins after midnight on the Distribution Date.
Section 1.19 Pre-Distribution Tax Attribute. "Pre-Distribution Tax
------------------------------
Attribute" means a Tax Attribute that arises in a Pre-Distribution Taxable
Period (including the taxable period in which the Distribution Date occurs) and
can be carried to a Post-Distribution Taxable Period.
Section 1.20 Pre-Distribution Taxable Period. "Pre-Distribution
-------------------------------
Taxable Period" means a taxable period that, to the extent it relates to Life
Sciences and its Subsidiaries, ends on or before midnight on the Distribution
Date.
Section 1.21 Proceeding. "Proceeding" means any audit or other
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examination, judicial or administrative proceeding relating to liability for, or
Refunds or adjustments with respect to, Income Taxes.
Section 1.22 Refund. "Refund" means any refund of Income Taxes,
------
including any reduction in Income Tax Liabilities by means of a credit, offset
or otherwise.
Section 1.23 Separation Agreement. "Separation Agreement" means the
--------------------
Master Separation and Distribution Agreement dated as of the date hereof between
the parties, to which this Agreement is attached as Exhibit F.
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Section 1.24 SeraCare Consolidated Federal Return. "SeraCare
------------------------------------
Consolidated Federal Return" means any consolidated federal Income Tax Return or
amendment thereof of the SeraCare Consolidated Group for any SeraCare
Consolidated Return Period.
Section 1.25 SeraCare Consolidated Group. "SeraCare Consolidated
---------------------------
Group" means SeraCare and, with respect to federal Income Taxes, the other
members of the affiliated group of corporations (within the meaning of Section
1504(a) of the Code) of which SeraCare was the common parent prior to the
Merger, and with respect to state or local Income Taxes, any other corporations
with whom SeraCare filed or files a consolidated, combined or unitary Income Tax
Return with SeraCare as the common parent. Notwithstanding the foregoing, Life
Sciences shall cease to be a member of the SeraCare Consolidated Group after
midnight on the Distribution Date, and shall not be a member of the SeraCare
Consolidated Group for any Post-Distribution Taxable Period.
Section 1.26 SeraCare Consolidated Returns. "SeraCare Consolidated
-----------------------------
Returns" means all SeraCare Consolidated Federal Returns and all SeraCare State
and Local Returns.
Section 1.27 SeraCare Consolidated Return Period. "SeraCare
-----------------------------------
Consolidated Return Period" means a taxable period that ends on, before, or
includes the Distribution Date for which a consolidated, combined or unitary (as
applicable) federal, state or local Income Tax Return is filed or required to be
filed by the SeraCare Consolidated Group or by a member thereof (except any
Income Tax Return filed or required to be filed by Life Sciences with respect to
any Post-Distribution Taxable Period).
Section 1.28 SeraCare Consolidated Tax Liability. "SeraCare
-----------------------------------
Consolidated Tax Liability" means the consolidated, combined or unitary Income
Tax Liability of the SeraCare Consolidated Group.
Section 1.29 SeraCare State and Local Returns. "SeraCare State and
--------------------------------
Local Returns" means any combined, consolidated or unitary state or local Income
Tax Returns or amendments thereof that are required to be filed by SeraCare or a
member of the SeraCare Consolidated Group for any SeraCare Consolidated Return
Period.
Section 1.30 Subsidiary. "Subsidiary" has the meaning set forth in
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Section 9.35 of the Separation Agreement.
Section 1.31 Tax Attribute. "Tax Attribute" means a consolidated net
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operating loss, a consolidated net capital loss, a consolidated unused
investment credit, a consolidated unused foreign tax credit, or a consolidated
excess charitable contribution (as such terms are used in Treasury Regulations
ss.ss.1.1502-79 and 1.1502-79A) or analogous provisions of state or local law,
or a U.S. federal minimum tax credit or U.S. federal general business credit or
analogous provisions of state or local law (but not tax basis or earnings and
profits).
Section 1.32 Taxing Jurisdiction. "Taxing Jurisdiction" means the
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United States and every other government or governmental unit, whether domestic
or foreign, having jurisdiction to tax SeraCare, Life Sciences or any of their
respective affiliates.
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Section 1.33 Life Sciences. "Life Sciences" has the meaning set forth
-------------
in the preamble and shall include for all purposes of this Agreement its
Subsidiaries.
ARTICLE II
PREPARATION AND FILING OF TAX RETURNS; PAYMENT OF TAX
Section 2.1 Federal Returns of SeraCare.
---------------------------
(a) General. Except as provided herein, SeraCare shall have sole
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and exclusive responsibility for the preparation and filing of all SeraCare
Consolidated Federal Returns, and any amendments thereto, with the IRS. SeraCare
shall, on a timely basis, file or cause to be filed all SeraCare Consolidated
Federal Returns and estimated tax returns of the SeraCare Consolidated Group as
are required to be filed in its sole discretion. SeraCare shall have the right
to: determine the manner in which all such returns shall be filed; make any
elections in connection with any such returns; contest, compromise and settle
any adjustments of deficiency proposed, asserted or assessed in connection with
any such returns; file, pursue, compromise or settle any claim for refund; and
determine whether any refunds to which the SeraCare Consolidated Group is
entitled shall be paid by way of a refund or credit. Notwithstanding the
foregoing, such returns shall be filed in a manner consistent with an allocation
of items of income, gain, loss or deduction of SeraCare and all other members of
the SeraCare Consolidated Group, including Life Sciences (including any deferred
income triggered into income by Treasury Regulations ss. 1.1502-13 and ss.
1.1502-14 and any excess loss accounts taken into income under Regulations ss.
1.1502-19) based upon Treasury Regulations ss.1.1502-76(b)(1)(ii) on an accrual
basis, and using a "closing of the books" method.
(b) Notwithstanding Section 2.1(c) and (d), SeraCare shall have
the sole authority to take any position on SeraCare Consolidated Federal Returns
(including any amended returns) to the extent that such position is consistent
with SeraCare's prior practice. To the extent such position on SeraCare
Consolidated Federal Returns is related to the Income Tax Liability of Life
Sciences, Life Sciences and SeraCare shall cooperate with each other reasonably
and in good faith to determine whether any such position is consistent with
SeraCare's prior practice, is inconsistent with SeraCare's prior practice, or
has no comparable prior practice.
(c) SeraCare shall allow Life Sciences an opportunity to review
and comment upon such SeraCare Consolidated Federal Returns (including any
amended returns) to the extent that they relate to the Income Tax Liability of
Life Sciences solely to the extent that positions taken on such returns are
inconsistent with SeraCare's prior practice or have no comparable prior
practice. For any position on such SeraCare Consolidated Federal Returns that is
inconsistent with SeraCare's prior practice or has no comparable prior practice,
and that relates to the Income Tax Liability of Life Sciences that would affect
Life Sciences on or after the date hereof, Life Sciences and SeraCare shall
cooperate with each other reasonably and in good faith to determine a mutually
acceptable return position.
(d) Subject to Section 2.1(c), to the extent an election, return
position, or amendment to a federal Income Tax Return filed by SeraCare or a
member of the SeraCare Consolidated Group relates to an item of income, gain,
loss or deduction of Life Sciences accruing in a Post-Distribution Taxable
Period, Life Sciences and SeraCare shall cooperate with
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each other reasonably and in good faith to determine a mutually acceptable
election, return position, or amendment to such Income Tax Return.
Notwithstanding the foregoing, if such election, return position, or amendment
to such Income Tax Return solely affects Life Sciences, such election, return
position, or amendment to such Income Tax Return shall be determined by Life
Sciences in its sole discretion, reasonably and in good faith.
(e) Cooperation. Life Sciences shall furnish SeraCare, at least
sixty (60) days before the due date (including extensions) of any SeraCare
Consolidated Federal Return, its completed section of such return, prepared in
accordance with this Agreement, and in a manner consistent with prior returns.
Life Sciences shall also furnish SeraCare work papers and other such information
and documentation as is reasonably requested by SeraCare with respect to Life
Sciences.
Section 2.2 State and Local Returns of SeraCare.
-----------------------------------
(a) General. SeraCare shall have sole and exclusive
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responsibility for the preparation and filing of all SeraCare State and Local
Returns. SeraCare shall on a timely basis file or cause to be filed all SeraCare
State and Local Returns and estimated tax returns of the SeraCare Consolidated
Group as are required to be filed in its sole discretion. SeraCare shall have
the right to: determine the manner in which all such returns shall be filed;
make any elections in connection with any such returns; contest, compromise and
settle any adjustments of deficiency proposed, asserted or assessed in
connection with any such returns; file, pursue, compromise or settle any claim
for refund; and determine whether any refunds to which the SeraCare Consolidated
Group is entitled shall be paid by way of a refund or credit. Notwithstanding
the foregoing, such returns shall be filed in a manner consistent with the
preparation of the relevant SeraCare Consolidated Federal Return and, when
requested by Life Sciences in its reasonable discretion, shall allocate items of
income, gain, loss and deduction of Life Sciences on a per diem basis.
(b) Notwithstanding Section 2.2(c) and (d), SeraCare shall have
the sole authority to take any position on SeraCare State and Local Returns
(including any amended returns) to the extent that such position is consistent
with SeraCare's prior practice. To the extent such position on SeraCare State
and Local Returns is related to the Income Tax Liability of Life Sciences, Life
Sciences and SeraCare shall cooperate with each other reasonably and in good
faith to determine whether any such position is consistent with SeraCare's prior
practice, is inconsistent with SeraCare's prior practice, or has no comparable
prior practice.
(c) SeraCare shall allow Life Sciences an opportunity to review
and comment upon such SeraCare State and Local Returns (including any amended
returns) to the extent that they relate to the Income Tax Liability of Life
Sciences solely to the extent that positions taken on such returns are
inconsistent with SeraCare's prior practice or have no comparable prior
practice. For any position on such SeraCare State and Local Returns that is
inconsistent with SeraCare's prior practice or has no comparable prior practice,
and that relates to the Income Tax Liability of Life Sciences that would affect
Life Sciences on or after the date hereof, Life Sciences and SeraCare shall
cooperate with each other reasonably and in good faith to determine a mutually
acceptable return position.
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(d) Subject to Section 2.2(c), to the extent an election, return
position, or amendment to a state or local Income Tax Return filed by SeraCare
or a member of the SeraCare Consolidated Group relates to an item of income,
gain, loss or deduction of Life Sciences accruing in a Post-Distribution Taxable
Period, Life Sciences and SeraCare shall cooperate with each other reasonably
and in good faith to determine a mutually acceptable election, return position,
or amendment to such Income Tax Return. Notwithstanding the foregoing, if such
election, return position, or amendment to such Income Tax Return solely affects
Life Sciences, such election, return position, or amendment to such Income Tax
Return shall be determined by Life Sciences in its sole discretion, reasonably
and in good faith.
(e) Cooperation. SeraCare shall timely advise Life Sciences of
the inclusion of Life Sciences in any SeraCare State and Local Returns and the
jurisdictions in which such returns will be filed. Life Sciences shall evidence
its agreement to be included in such return on the appropriate form(s) and shall
take such other actions as may be appropriate to carry out the purposes and
intent of Section 2.1 and this Section 2.2, provided that such actions are not
inconsistent with this Agreement. Life Sciences shall furnish SeraCare, at least
sixty (60) days before the due date (including extensions) of any such SeraCare
State and Local Returns, its completed section of such returns, prepared in
accordance with this Agreement, and in a manner consistent with prior returns.
Life Sciences shall also furnish SeraCare workpapers and other such information
and documentation as is reasonably requested by SeraCare with respect to Life
Sciences.
Section 2.3 Income Tax Liability.
--------------------
(a) SeraCare Consolidated Federal Return Liability. Except to
----------------------------------------------
the extent otherwise provided herein, SeraCare shall be liable for and indemnify
Life Sciences against all Income Taxes due in respect of all SeraCare
Consolidated Federal Returns.
(b) SeraCare State and Local Return Liability. Except to the
-----------------------------------------
extent otherwise provided herein, SeraCare shall be liable for and indemnify
Life Sciences against all Income Taxes due in respect of all SeraCare State and
Local Returns.
(c) Life Sciences Payment of Income Tax Liability. With respect
---------------------------------------------
to the Pre-Distribution Taxable Period beginning the date hereof and ending on
the Distribution Date (the "Life Sciences Liability Period"), Life Sciences
shall pay to SeraCare an amount equal to the amount of taxes for which Life
Sciences would be directly liable if Life Sciences filed its Income Tax Returns
on a separate company basis and paid Income Tax based solely upon items of
income, gain, loss or deduction of Life Sciences for the Life Sciences Liability
Period (the "Life Sciences Tax Liability"). For purposes of determining the Life
Sciences Tax Liability, Life Sciences shall furnish SeraCare, at least sixty
(60) days before the due date (including extensions) of any relevant Income Tax
Return of SeraCare, its calculation of the items of income, gain, loss or
deduction of Life Sciences as a separate company, based upon a closing of the
books method. Life Sciences shall also furnish SeraCare work papers and other
such information and documentation as is reasonably requested by SeraCare with
respect to Life Sciences. In no event shall the Life Sciences Tax Liability
attributable to any SeraCare Consolidated Return Period exceed the aggregate
amount of Income Tax payable by SeraCare for such period.
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Section 2.4 Life Sciences Separate Returns and Income Tax Liability.
-------------------------------------------------------
Life Sciences shall prepare, or cause to be prepared, all Income Tax Returns of
Life Sciences for, and shall be liable for, all Income Taxes of Life Sciences
due in respect of, (a) all Post-Distribution Taxable Periods and (b) any taxable
period for which Life Sciences, with respect to such Income Tax, is not or was
not a member of the SeraCare Consolidated Group.
ARTICLE III
INDEMNIFICATION FOR INCOME TAXES
Section 3.1 Indemnification by SeraCare. Except as otherwise provided
---------------------------
in this Article III, SeraCare shall indemnify and hold Life Sciences and its
successors and assigns harmless from and against (i) the SeraCare Consolidated
Tax Liability, including any Income Taxes that are imposed on SeraCare, any
member of the SeraCare Consolidated Group, Life Sciences or any other Person as
a result (in whole or in part) of the Distribution or the Merger, (ii) any
liability for Income Taxes as a result of Treasury Regulations ss.1.1502-6 or
any analogous or similar provision under state or local law or regulation, of
any Person which is or has ever been a member of the SeraCare Consolidated
Group, (iii) all Income Tax Liabilities that SeraCare is required to pay under
Article II hereof, and (iv) any costs and expenses related to any of the
foregoing (including, without limitation, reasonable legal, accounting,
appraisal, consulting or similar fees and expenses), provided, however, that
this Section 3.1 shall not apply to any portion of the Life Sciences Tax
Liability.
Section 3.2 Indemnification by Life Sciences. From and after the
--------------------------------
Distribution Date, Life Sciences shall indemnify and hold each member of the
SeraCare Consolidated Group (other than Life Sciences) harmless from and against
(i) all Income Tax Liabilities that Life Sciences is required to pay under
Article II hereof, and (ii) any costs and expenses related to any of the
foregoing (including, without limitation, reasonable legal, accounting,
appraisal, consulting or similar fees and expenses.
ARTICLE IV
INCOME TAX CONTESTS
Section 4.1 Notification. Life Sciences shall promptly upon receipt
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of notice thereof notify SeraCare in writing of any communication with respect
to any pending or threatened Proceeding in connection with an Income Tax
Liability (or an issue related thereto) for which SeraCare may be responsible
pursuant to this Agreement. Life Sciences shall include with such notification a
true, correct and complete copy of any written communication, and an accurate
and complete written summary of any oral communication, so received by Life
Sciences. The failure of Life Sciences to timely forward such notification in
accordance with the immediately preceding sentence shall not relieve SeraCare of
its obligation to pay such Income Tax Liability or indemnify Life Sciences
therefor, except and to the extent that the failure to timely forward such
notification actually prejudices the ability of SeraCare to contest such Income
Tax Liability or increases the amount of such Income Tax Liability. Similarly,
SeraCare shall promptly upon receipt of notice thereof notify Life Sciences in
writing of any communication with respect to any pending or threatened
Proceeding in connection with an Income Tax Liability (or an issue related
thereto) for which Life Sciences may be responsible pursuant to this Agreement.
SeraCare shall include with such notification a true, correct and complete copy
of any written
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communication, and an accurate and complete written summary of any oral
communication, so received by SeraCare. The failure of SeraCare to timely
forward such notification in accordance with the immediately preceding sentence
shall not relieve Life Sciences of its obligation to pay such Income Tax
Liability or indemnify SeraCare therefor, except and to the extent that the
failure to timely forward such notification actually prejudices the ability of
Life Sciences to contest such Income Tax Liability or increases the amount of
such Income Tax Liability.
Section 4.2 Proceedings Involving SeraCare. Except as limited in
------------------------------
Section 4.2(a), (b), (c), and (d), SeraCare (or such member of the SeraCare
Consolidated Group as SeraCare shall designate) shall be entitled to designate
counsel with respect to any Proceeding with respect to an Income Tax Return
filed by SeraCare or a member of the SeraCare Consolidated Group, and SeraCare
shall have the right to resolve any such Proceeding in its sole discretion.
(a) SeraCare shall allow Life Sciences and its counsel to
participate at its own expense in any Proceeding relating to an Income Tax
Return filed for a SeraCare Consolidated Return Period, to the extent that such
Proceeding relates to Income Tax for which Life Sciences would be liable under
Sections 2.3 or 2.4 hereof. Life Sciences shall have the sole authority to
determine whether any such Proceeding relates to Income Tax for which Life
Sciences would be liable under Sections 2.3 or 2.4 hereof, which authority shall
be exercised by Life Sciences reasonably and in good faith;
(b) Subject to Section 4.2(a), to the extent an election, return
position, or amendment to an Income Tax Return filed by SeraCare or a member of
the SeraCare Consolidated Group relates to an item of income, gain, loss or
deduction of Life Sciences accruing in a Post-Distribution Taxable Period, Life
Sciences and SeraCare shall cooperate with each other reasonably and in good
faith to determine a mutually acceptable election, return position, or amendment
to such Income Tax Return. Notwithstanding the foregoing, if such election,
return position, or amendment to such Income Tax Return solely affects Life
Sciences, such election, return position, or amendment to such Income Tax Return
shall be determined by Life Sciences in its sole discretion reasonably and in
good faith;
(c) Life Sciences shall be entitled to designate counsel with
respect to any Proceeding with respect to an Income Tax Return that includes
solely Life Sciences and relates solely to items for which Life Sciences is
responsible hereunder, and Life Sciences shall have the right to resolve any
such Proceedings in its sole discretion.
(d) Life Sciences shall allow SeraCare and its counsel to
participate at its own expense in any Proceeding relating to an Income Tax
Return filed by Life Sciences, to the extent that such Proceeding relates to
Income Tax for which SeraCare would be liable under Section 2.3 hereof. SeraCare
shall have the sole authority to determine whether any such Proceeding relates
to Income Tax for which SeraCare would be liable under Section 2.3 hereof, which
authority shall be exercised by SeraCare reasonably and in good faith.
Section 4.3 Power of Attorney. Life Sciences shall execute and
-----------------
deliver to SeraCare any power of attorney or other document reasonably requested
by SeraCare (or a designee) in connection with any Proceeding described in
Section 4.2 hereof.
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ARTICLE V
APPORTIONMENT OF TAX ATTRIBUTES; REFUNDS; TAX SHARING
AGREEMENTS
Section 5.1 Apportionment of Tax Attributes.
-------------------------------
(a) If the SeraCare Consolidated Group has a Pre-Distribution
Tax Attribute, the portion, if any, of such Pre-Distribution Tax Attribute that
shall be apportioned to Life Sciences and treated as a carryover to the first
Post-Distribution Taxable Period of Life Sciences shall be determined as if the
members of the SeraCare Consolidated Group had filed returns on a separate
company basis; provided, however, that the portion, if any, of any consolidated
unused foreign tax credit which shall be apportioned to Life Sciences shall be
determined separately with respect to each of the items of income listed in
Section 904(d) of the Code.
(b) Subject to Life Sciences' consent, which consent shall not
be unreasonably withheld, SeraCare shall determine the portion, if any, of any
Pre-Distribution Tax Attribute that must (absent a Final Determination to the
contrary) be apportioned to Life Sciences in accordance with this Section 5.1
and applicable law, and the amount of tax basis and earnings and profits to be
apportioned to Life Sciences in accordance with applicable law, and shall
provide written notice of the calculation thereof to Life Sciences within 180
days of the filing of the SeraCare Consolidated Federal Return that includes the
Distribution Date.
Section 5.2 Refunds. Except as set forth in this Section 5.2 and in
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Section 5.3, SeraCare shall be entitled to all Refunds (and any interest thereon
received from the applicable Taxing Jurisdiction) in respect of Income Taxes for
all SeraCare Consolidated Returns. Life Sciences shall be entitled to all
Refunds (and any interest thereon received from the applicable Taxing
Jurisdiction) in respect of (a) Income Taxes paid by Life Sciences for all Post-
Distribution Taxable Periods, (b) the Life Sciences Tax Liability, and (c) any
separate returns filed by Life Sciences pursuant to Section 2.4 hereof. A party
receiving a Refund to which another party is entitled pursuant to this Section
5.2 shall pay the amount to which such other party is entitled within ten (10)
days after such Refund is received. SeraCare shall be permitted to file, and
Life Sciences shall fully cooperate with SeraCare in connection with, any claim
for Refund in respect of an Income Tax for which any member of the SeraCare
Consolidated Group is responsible pursuant to Article II hereof.
Section 5.3 Carrybacks. Life Sciences elects not to carry back any
----------
Post-Distribution Tax Attribute into a SeraCare Consolidated Return. SeraCare
shall have no obligation to file any Income Tax Return or refund claim, amended
or otherwise, as a result of any Post-Distribution Tax Attribute of Life
Sciences.
Section 5.4 Retention of Carryovers. SeraCare shall not elect to
-----------------------
retain any net operating loss carryovers or capital loss carryovers of Life
Sciences under Treasury Regulations ss. 1.1502-20(g), provided, however, that
any such net operating loss carryover or capital loss carryover of Life Sciences
may be used in the computation of the taxable income of any SeraCare
Consolidated Return.
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Section 5.5 Tax Sharing Agreements. Any tax sharing agreement (other
----------------------
than this Agreement) between SeraCare and Life Sciences or between Life Sciences
and any other Person shall be terminated as of the Distribution Date and will
have no further effect for any taxable year (whether the current year, a future
year, or a past year).
ARTICLE VI
COOPERATION AND EXCHANGE OF INFORMATION
Section 6.1 Cooperation.
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(a) Life Sciences, on behalf of itself and each of its
affiliates, agrees to provide SeraCare (or its designee) with such cooperation
or information as SeraCare (or its designee) reasonably shall request in
connection with the determination of any other calculations described in this
Agreement, the preparation or filing of any Income Tax Return or claim for
Refund, or the conduct of any Proceeding. Such cooperation and information shall
include, without limitation, (i) promptly forwarding copies of appropriate
notices and forms or other communications (including, without limitation,
information document requests, revenue agent reports and similar reports,
notices of proposed adjustments and notices of deficiency) received from or sent
to any Taxing Jurisdiction or any other administrative, judicial or governmental
authority, (ii) upon reasonable notice, providing copies of all relevant Income
Tax Returns, together with accompanying schedules and related workpapers,
documents relating to rulings or other determinations by taxing authorities, and
such other records concerning the ownership and tax basis of property, or other
relevant information that Life Sciences or its affiliates may possess, (iii)
upon reasonable notice, providing of such additional information and
explanations of documents and information provided under this Agreement
(including statements, certificates and schedules delivered by either party) as
shall be reasonably requested by SeraCare (or its designee), (iv) upon
reasonable notice, the providing of any document that may be necessary or
reasonably helpful in connection with the filing of an Income Tax Return, a
claim for a Refund, or in connection with any Proceeding, including such
waivers, consents or powers of attorney as may be necessary for SeraCare to
exercise its rights under this Agreement, and (v) upon reasonable notice, using
reasonable efforts to obtain any documentation from a governmental authority or
a third party that may be necessary or reasonably helpful in connection with any
of the foregoing. Upon reasonable notice, Life Sciences shall make its, or shall
cause its affiliates to make their, employees and facilities available on a
mutually convenient basis to provide explanation of any documents or information
provided hereunder. Any information obtained under this Section 6.1(a) shall be
kept confidential, except as otherwise reasonably may be necessary in connection
with the filing of Income Tax Returns or claims for Refund or in conducting any
Proceeding. It is expressly the intention of the parties to this Agreement to
take all actions that shall be necessary to establish SeraCare as the sole agent
for Income Tax purposes with respect to all SeraCare Consolidated Returns.
(b) SeraCare, on behalf of itself and each member of the
SeraCare Consolidated Group (including SeraCare), agrees to provide Life
Sciences (or its designee) with such cooperation or information as Life Sciences
(or its designee) reasonably shall request in connection with the determination
of any other calculations described in this Agreement, the preparation or filing
of any Income Tax Return or claim for Refund, or the conduct of any
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Proceeding. Such cooperation and information shall include, without limitation
and upon reasonable notice, promptly forwarding copies of appropriate notices
and forms or other communications (including, without limitation, information
document requests, revenue agent's reports and similar reports, notices of
proposed adjustments and notices of deficiency) received from or sent to any
Taxing Jurisdiction or any other administrative, judicial or governmental
authority, (ii) upon reasonable notice, providing copies of all relevant Income
Tax Returns, together with accompanying schedules and related workpapers,
documents relating to rulings or other determinations by taxing authorities, and
such other records concerning the ownership and tax basis of property, or other
relevant information that SeraCare or any member of the SeraCare Consolidated
Group may possess, (iii) upon reasonable notice, the provision of such
additional information and explanations of documents and information provided
under this Agreement (including statements, certificates and schedules delivered
by either party) as shall be reasonably requested by Life Sciences (or its
designee), (iv) upon reasonable notice, the execution of any document that may
be necessary or reasonably helpful in connection with the filing of an Income
Tax Return, a claim for a Refund, or in connection with any Proceeding,
including such waivers, consents or powers of attorney as may be necessary for
Life Sciences to exercise its rights under this Agreement, and (v) the use of
SeraCare's reasonable efforts to obtain any documentation from a governmental
authority or a third party that may be necessary or reasonably helpful in
connection with any of the foregoing. Upon reasonable notice, SeraCare shall
make, or shall cause each member of the SeraCare Consolidated Group to make, its
employees and facilities available on a mutually convenient basis to provide
explanation of any documents or information provided hereunder. Any information
obtained under this Section 6.1(b) shall be kept confidential, except as
otherwise reasonably may be necessary in connection with the filing of Income
Returns or claims for Refund or in conducting any Proceeding. Notwithstanding
any other provision of this Agreement, neither Life Sciences, nor any of its
affiliates nor any other Person shall have any right to receive or obtain any
information relating to income of SeraCare or any of its affiliates other than
information relating to items of income, gain, loss, deduction, or the Income
Tax Liability of Life Sciences.
Section 6.2 Retention of Records. Life Sciences agrees to retain all
--------------------
Income Tax Returns, related schedules and workpapers, and all material records
and other documents as required under Code Section 6001 and the regulations
promulgated thereunder (and any similar provision of state, local, or foreign
Income or other Tax law) existing on the date hereof or created in respect of
(i) any taxable period that ends on or before or includes the Distribution Date
or (ii) any taxable period that may be subject to a claim hereunder, until the
later of (x) the expiration of the statute of limitations (including extensions)
for the taxable periods to which such Income Returns and other documents relate
and (y) the Final Determination of any payments that may be required in respect
of such taxable periods under this Agreement. From and after the end of the
period described in the preceding sentence of this Section 6.2, if Life Sciences
wishes to dispose of any such records and documents, then Life Sciences shall
provide written notice thereof to SeraCare and shall provide SeraCare the
opportunity to take possession of any such records and documents within ninety
(90) days after such notice is delivered; provided, however, that if SeraCare
does not, within such ninety (90) day period, confirm its intention to take
possession of such records and documents, Life Sciences may destroy or otherwise
dispose of such records and documents.
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ARTICLE VII
PAYMENTS
Section 7.1 Method of Payment. All payments required by this
-----------------
Agreement shall be made by (a) wire transfer to the appropriate bank account as
may from time to time be designated by the parties for such purpose; provided
that, on the date of such wire transfer, notice of the transfer is given to the
recipient thereof in accordance with Section 8.4 hereof, or (b) any other method
agreed to by the parties. All payments due under this Agreement shall be deemed
to be paid when available funds are actually received by the payee.
Section 7.2 Interest. Any payment required by this Agreement that is
--------
not made on or before the date required hereunder shall bear interest, from and
after such date through the date of payment, at the underpayment rate as in
effect at such time under Section 6621 of the Code.
Section 7.3 Characterization of Payments. For all tax purposes, the
----------------------------
parties hereto agree to treat, and to cause their respective affiliates to
treat, (i) any payment required by this Agreement as a contribution by SeraCare
to Life Sciences occurring immediately prior to the Distribution and (ii) any
payment of interest or non-federal Income Taxes by or to a Taxing Jurisdiction,
as taxable to or deductible by, as the case may be, the party entitled under
this Agreement to receive such payment or required under this Agreement to make
such payment, in either case except as otherwise mandated by applicable law;
provided that in the event it is determined as a result of a Final Determination
that any such treatment is not permissible, the payment in question shall be
adjusted to place the parties in the same after-tax position they would have
enjoyed absent such Final Determination. Any payment required by this Agreement
by Life Sciences to SeraCare shall be treated as Life Sciences' share of the tax
liability of the SeraCare Consolidated Returns, as determined in accordance with
this Agreement and the Treasury Regulations under Section 1502.
Section 7.4 Time of Indemnification Payment. To the extent an
-------------------------------
indemnification obligation arises, the Indemnifying Party shall, upon at least
ten (10) days' prior notice, make payment pursuant to such indemnification
obligation no later than five (5) days prior to the date the Indemnified Party
makes a payment of taxes, interest, or penalties with respect to such Income Tax
Liability, including a proposed adjustment of taxes or an assessment of tax
deficiency asserted or made by any Taxing Jurisdiction that is premised in whole
or part on such Income Tax Liability, or a payment made in settlement of an
asserted tax deficiency.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Entire Agreement. This Agreement, the Ancillary
----------------
Agreements and the Exhibits and Schedules referenced or attached hereto and
thereto, constitute the entire agreement between the parties with respect to the
subject matter hereof and shall supersede all prior written and oral and all
contemporaneous oral agreements and understandings with respect to the subject
matter hereof.
Section 8.2 Dispute Resolution. Any and all controversies, disputes
------------------
or claims arising out of, relating to, in connection with or resulting from this
Agreement (or any
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amendment thereto or any transaction contemplated hereby or thereby), including
as to its existence, interpretation, performance, non-performance, validity,
breach or termination, including any claim based on contract, tort, statute or
constitution and any claim raising questions of law, whether arising before or
after termination of this Agreement, shall be deemed a Dispute as defined in
Section 7.6 of the Separation Agreement and shall be resolved exclusively by, in
accordance with, and subject to the limitations set forth in Section 7.6 of the
Separation Agreement.
Section 8.3 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware, without regard
to its rules regarding conflicts of laws.
Section 8.4 Notices. Any notice, demand, offer, request or other
-------
communication required or permitted to be given by either party pursuant to the
terms of this Agreement shall be in writing and shall be deemed effectively
given the earlier of (i) when received, (ii) when delivered personally, (iii)
one (1) business day after being delivered by facsimile (with receipt of
appropriate confirmation), (iv) one (1) business day after being deposited with
an overnight courier service, or (v) four (4) days after being deposited in the
U.S. mail, First Class with postage prepaid, and addressed to the attention of
the party's Chief Executive Officer at the address of its principal executive
office or such other address as a party may request by notifying the other party
thereof in writing.
Section 8.5 Agent. Life Sciences hereby irrevocably appoints SeraCare
-----
as its agent and limited attorney-in-fact to take any action as SeraCare may
deem necessary or appropriate to effect the tax sharing contemplated by this
Agreement including, without limitation, those actions specified in Treasury
Regulation ss.1.1502-77(a) and analogous provisions of state and local law.
Section 8.6 Amendment. This Agreement may be amended, modified or
---------
supplemented only by a written agreement signed by both of the parties hereto.
Section 8.7 Counterparts. This Agreement and the other documents
------------
referred to herein, may be executed via facsimile or otherwise in counterparts,
each of which shall be deemed to be an original but all of which shall
constitute one and the same agreement.
Section 8.8 Binding Effect; Assignment. This Agreement shall inure to
--------------------------
the benefit of and be binding upon the parties hereto and their respective legal
representatives and successors, 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. Except as herein
specifically provided to the contrary, neither party may assign this Agreement
or any rights or obligations hereunder, without the prior written consent of the
other party, and any such assignment shall be void; provided, however, that
either party (or its permitted successive assignees or transferees hereunder)
may assign or transfer this Agreement as a whole without consent to an entity
that succeeds to all or substantially all of the business or assets of such
party to which this Agreement relates. Notwithstanding the foregoing, SeraCare
may assign any of its rights or obligations under this Agreement to any member
of its consolidated group as determined under Section 1504 of the Code it shall
designate or to any
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purchaser of SeraCare; provided, however, that no such assignment shall relieve
SeraCare of any obligation to make a payment hereunder to Life Sciences to the
extent such designee fails to make such payment.
Section 8.9 Severability. The parties hereto have negotiated and
------------
prepared the terms of this Agreement in good faith with the intent that each and
every one of the terms, covenants and conditions herein be binding upon and
inure to the benefit of the respective parties. Accordingly, if any one or more
of the terms, provisions, promises, covenants or conditions of this Agreement or
the application thereof to any person or circumstance shall be adjudged to any
extent invalid, unenforceable, void or voidable for any reason whatsoever by a
court of competent jurisdiction, such provision shall be as narrowly construed
as possible, and each and all of the remaining terms, provisions, promises,
covenants and conditions of this Agreement or their application to other persons
or circumstances shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law. To the extent this Agreement
is in violation of applicable law, then the parties agree to negotiate in good
faith to amend the Agreement, to the extent possible consistent with its
purposes, to conform to law.
Section 8.10 Waiver of Breach. The waiver by either party hereto of a
----------------
breach or violation of any provision of this Agreement shall not operate as, or
be construed to constitute, a waiver of any subsequent breach of the same or
another provision hereof.
Section 8.11 Amendment and Execution. This Agreement and amendments
-----------------------
hereto shall be in writing and executed in multiple copies via facsimile or
otherwise on behalf of SeraCare and Life Sciences by their respective duly
authorized officers and representatives. Each multiple copy shall be deemed an
original, but all multiple copies together shall constitute one and the same
instrument.
Section 8.12 Authority. Each of the parties hereto represents to the
---------
other that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary
corporate or other actions, (c) it has duly and validly executed and delivered
this Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
Section 8.13 Descriptive Headings. The headings contained in this
--------------------
Agreement and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. When a reference is made in this Agreement to an Article or a
Section, such reference shall be to an Article or Section of this Agreement
unless otherwise indicated.
Section 8.14 Gender and Number. Whenever the context of this Agreement
-----------------
requires, the gender of all words herein shall include the masculine, feminine
and neuter, and the number of all words herein shall include the singular and
plural.
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Section 8.15 Additional Assurances. Except as may be specifically
---------------------
provided herein to the contrary, the provisions of this Agreement shall be self-
operative and shall not require further agreement by the parties; provided,
however, at the request of either party, the other party shall execute such
additional instruments and take such additional acts as are reasonable, and as
the requesting party may reasonably deem necessary, to effectuate this
Agreement.
Section 8.16 Force Majeure. Neither party shall be liable or deemed to
-------------
be in default for any delay or failure in performance under this Agreement or
other interruption of service deemed to result, directly or indirectly, from
acts of God, civil or military authority, acts of public enemy, war, accidents,
explosions, earthquakes, floods, failure of transportation, strikes or other
work interruptions by either party's employees, or any other similar cause
beyond the reasonable control of either party unless such delay or failure in
performance is expressly addressed elsewhere in this Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized on the day and
year first above written.
SERACARE, INC. SERACARE LIFE SCIENCES, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
--------------------- -----------------------
Name; Xxxxx Xxxxx Name; Xxxxx Xxxxxxx
Title: Chief Executive Officer Title: Executive Vice President
[SIGNATURE PAGE TO TAX SHARING AGREEMENT]
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