AMENDED AND RESTATED TAX SHARING AND INDEMNITY AGREEMENT
Exhibit 10.3
AMENDED
AND RESTATED
TAX SHARING AND INDEMNITY AGREEMENT
TAX SHARING AND INDEMNITY AGREEMENT
This AMENDED AND RESTATED TAX SHARING AND INDEMNITY AGREEMENT
(the “Agreement”), is effective the 1st day of
November, 2007, by and between XXXXXX CORPORATION
(“Xxxxxx”), a Nevada corporation, and XXX.XXX
CORPORATION (“XXX.XXX”), a Nevada corporation.
R E C I T
A L S:
X. Xxxxxx, a public company, whose common shares are traded
on the New York Stock Exchange, owns 48,972,258 shares of
XXX.XXX’s common stock, par value $.001 per share,
constituting approximately ninety-eight percent (98%) of the
issued and outstanding common stock of XXX.XXX.
X. Xxxxxx is the parent of an affiliated group of
corporations, including XXX.XXX, that join in filing
consolidated federal Tax Returns and certain consolidated,
combined or unitary state income Tax Returns;
X. Xxxxxx and XXX.XXX entered into a Tax Sharing and
Indemnity Agreement dated October 20, 1999 (the
“Original Agreement”).
D. The tax year for Xxxxxx, as parent of an affiliated
group of corporations, including XXX.XXX, was changed from a
fiscal year ended September 30th, to a calendar year ended
December 31st. Accordingly, Xxxxxx filed a consolidated tax
return for federal purposes for the short period beginning
October 1, 2002 through December 31, 2002. As a result
of the change in tax year, the Original Agreement needs to be
restated to correspond with the current tax period beginning
January 1st and ending December 31st.
NOW, THEREFORE, in consideration of their mutual promises,
Xxxxxx and XXX.XXX agree as follows:
ARTICLE 1
DEFINITIONS
1.1 As used in this Agreement, the following terms
shall have the following meanings:
“Code” means the Internal Revenue Code of 1986,
as amended, or any successor thereto, as in effect for the
taxable period in question.
“Consolidated Group” means the group of
corporations that immediately prior to the Effective Date are
members of the affiliated group of corporations (within the
meaning of Section 1504 of the Code) of which Xxxxxx is the
common parent.
“Effective Date” means the date upon which
Xxxxxx ceases to own eighty percent (80%) of the issued and
outstanding shares of XXX.XXX.
“Final Determination” shall mean the final
resolution of liability for any Tax for a taxable period,
including any related interest or penalties, (a) 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 Internal Revenue Service (“IRS”), or by
a comparable form under the laws of other jurisdictions; except
that a Form 870 or
870-AD or
comparable form that reserves (whether by its terms or by
operation of law) the right of the taxpayer to file a claim for
refund
and/or the
right of the Taxing Authority to assert a further deficiency
shall not constitute a Final Determination; (b) by a
decision, judgment, decree, or other order by a court of
competent jurisdiction, which has become final and unappealable;
(c) by a closing agreement or accepted offer in compromise
under Section 7121 or 7122 of the Code, or comparable
agreements under the laws of other jurisdictions; (d) by
any allowance of a refund or credit in respect of an overpayment
of Tax, but only after the expiration of all periods during
which such refund may be recovered (including by way of offset)
by the Tax imposing jurisdiction; or (e) by any other final
disposition, including by reason of the expiration of the
applicable statute of limitations.
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“Representative” means with respect to any
person or entity, any of such person’s or entity’s
directors, officers, employees, agents, consultants, advisors,
accountants, attorneys, and representatives.
“Tax” or “Taxes” means
(a) all forms of taxation, whenever created or imposed, and
whenever imposed by a national, municipal, governmental, state,
federal or other body, whether domestic or foreign (a
“Taxing Authority”), and without limiting the
generality of the foregoing, shall include net income,
alternative or add-on minimum tax, gross income, sales, use, ad
valorem, gross receipts, value added, franchise, profits,
license, transfer, recording, withholding, payroll, employment,
excise, severance, stamp, occupation, premium, property,
windfall profit, custom duty, or other tax, governmental fee or
other like assessment or charge of any kind whatsoever, together
with any related interest, penalties, or other additions to tax,
or additional amounts imposed by any such Taxing Authority,
(b) liability for the payment of any amounts of the type
described in (a) as a result of being a member of an
affiliated, consolidated, combined or unitary group for any
period, including any liability arising pursuant to Treas. Reg.
Section 1.1502-6,
or as a result of being a party to any agreement or arrangement
whereby liability for payment of such amounts was determined or
taken into account with reference to the liability of another
party and (c) liability for the payment of any amounts of
the type described in (a) as a result of any express or
implied obligation to indemnify any other person.
“Taxing Authority” is defined under the term
“Taxes.”
“Taxable Period” or “Taxable
Periods” means the tax year for the “Consolidated
Group” as defined in this Article 1.
“Tax Return” means any return, filing,
questionnaire or other document required to be filed, including
requests for extensions of time, filings made with estimated Tax
payments, claims for refund and amended returns that may be
filed, for any taxable period with any Taxing Authority in
connection with any Tax (whether or not a payment is required to
be made with respect to such filing).
“XXX.XXX Businesses” means the present and
future subsidiaries, divisions and business of XXX.XXX and any
member of the XXX.XXX Post-Closing Affiliates.
“XXX.XXX Post-Closing Affiliate” means any
corporation, partnership or other entity directly or indirectly
controlled by XXX.XXX after the Effective Date.
“XXX.XXX Pre-Closing Affiliate” means any
corporation, partnership or other entity directly or indirectly
controlled by XXX.XXX on or before the Effective Date.
“Xxxxxx Affiliate” means any corporation,
partnership or other entity directly or indirectly controlled by
Xxxxxx, other than XXX.XXX or any XXX.XXX Affiliate.
“Xxxxxx Businesses” means the present and
future subsidiaries, divisions and business of any member of the
Xxxxxx Group, other than the present and future subsidiaries,
divisions and business of ZAPCOM or any XXX.XXX Post-Closing
Affiliates.
“Xxxxxx Group” means the group of corporations
that immediately after the Effective Date are members of the
affiliated group of corporations of which Xxxxxx is the common
parent (within the meaning of section 1504 of the Code).
ARTICLE 2
PREPARATION
AND FILING OF TAX RETURNS
2.1 Income Included. All Tax Returns required to be
filed by the Consolidated Group relating to Taxable Periods
ending before or including the Effective Date and filed after
the date of this Agreement shall include the income of XXX.XXX
and XXX.XXX Pre-Closing Affiliates (as determined in this
Section 2.1) attributable to such Taxable Periods
(including, for Federal income Tax purposes, any deferred income
triggered into income by Treas. Reg.
Section 1.1502-13
and any excess loss accounts taken into income under Treas. Reg.
Section 1.1502-19)
required to be reported in the Consolidated Group’s
consolidated Federal income Tax Returns (or under any similar
rules applicable to any state, local or other Tax Returns filed
on a consolidated basis). The income of XXX.XXX and
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XXX.XXX Pre-Closing Affiliates will be apportioned for the Tax
period commencing January 1, up to and including the
Effective date and the period after the Effective Date by
closing the books of XXX.XXX and such XXX.XXX Pre-Closing
Affiliates as of the end of the Effective Date. The income of
XXX.XXX and any XXX.XXX Pre-Closing Affiliate shall not include
any deferred income triggered into income by Treas. Reg.
Section 1.1502-13
and any excess loss accounts taken into income under Treas. Reg.
Section 1.1502-19,
attributable to any other member of the Consolidated Group.
2.2 Tax Returns for Taxable Periods Ending Before or
Including the Effective Date. Except as otherwise provided in
Section 2.4, Xxxxxx shall timely prepare and file, or cause
to be timely prepared and filed, all Tax Returns required to be
filed by or on behalf of any member of the Consolidated Group
relating to Taxable Periods ending before or including the
Effective Date. XXX.XXX shall provide Xxxxxx any Tax-related
information reasonably requested by Xxxxxx relating to any
Taxable Periods ending on or before the Effective Date.
2.3 Tax Returns for Taxable Periods Beginning After
the Effective Date. XXX.XXX shall prepare and file, or cause to
be prepared and filed, all Tax Returns for XXX.XXX and any
XXX.XXX Post-Closing Affiliate for taxable periods of XXX.XXX
and any XXX.XXX Post-Closing Affiliate beginning after the
Effective Date. Xxxxxx shall prepare and file, or cause to be
prepared and filed, all Tax Returns for the Xxxxxx Group for
Taxable Periods beginning after the Effective Date.
2.4 Carry-Over Period Returns.
(a) XXX.XXX shall prepare and file on a timely basis any
Tax Returns (but not including any Federal income Tax Return or
Tax Returns under any similar rules applicable to any state or
local, and filed on a consolidated basis) of XXX.XXX and any
XXX.XXX Pre-Closing Affiliate for any Taxable Period beginning
before and ending after the Effective Date (a “Carry-Over
Period”).
(b) All other Tax Returns for a Carry-Over Period required
to be filed by any member of the Consolidated Group other than
XXX.XXX or any XXX.XXX Pre-Closing Affiliate shall be prepared
and filed by Xxxxxx.
ARTICLE 3
PAYMENT OF
TAXES
3.1 Liability for Taxes With Respect to Taxable
Periods Ending Before or Including the Effective Date. Except as
otherwise provided in this Agreement, Xxxxxx shall be
responsible for paying and shall pay all Taxes relating to any
Tax Return filed by the Consolidated Group or any member thereof
with respect to any Taxable Period ending before and including
the Effective Date, including without limitation, any additional
Taxes as a result of any audit, amendment or other change in a
Tax Return as filed by the Consolidated Group or any member
thereof. Xxxxxx shall be entitled to all Tax refunds received or
receivable with respect to any and all Taxes attributable to the
Consolidated Group for all such taxable years and periods ending
before including the Effective Date.
3.2 Preparation of XXX.XXX’s Final Returns;
Payment of Taxes. On or before the Effective Date Xxxxxx shall
cause to be prepared (in a manner consistent with practices
followed in prior years) and delivered to XXX.XXX a separate
United States Federal Income Tax Return for XXX.XXX and each
XXX.XXX Pre-Closing Affiliate for the Tax period beginning
January 1, and ending on the Effective Date (the
“XXX.XXX Final Returns”). The XXX.XXX Final Returns
shall include all items of income, gain, loss, deductions and
credit of XXX.XXX and the XXX.XXX Pre-Closing Affiliates
realized during such period and determined and apportioned in
accordance with Section 2.1. Xxxxxx shall include in its
consolidated federal income tax for its first taxable year
ending after the Effective Date the items of income, gain, loss,
deductions and credit shown on the XXX.XXX Final Returns and
shall pay all Taxes due with respect thereto as provided in this
Section 3.2 and Section 3.1.
3.3 Separation Payment With Respect to Federal Income
Taxes. Xxxxxx shall give XXX.XXX notice of the filing of
Xxxxxx’x consolidated federal income tax returns for its
first taxable year ending after the Effective Date (“Final
Return Notice”). If the XXX.XXX Final Returns show a tax
liability, XXX.XXX shall pay to Xxxxxx the amount thereof within
thirty (30) days after receipt by XXX.XXX of the Final
Return Notice. Xxxxxx shall not withdraw any earnings or assets
of XXX.XXX or any XXX.XXX Pre-Closing Affiliates prior to the
Effective Date. If the XXX.XXX Final Returns show a net
operating loss or other tax benefit that is utilized by Xxxxxx
or any member
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of the Xxxxxx Group and, therefore, is not allocated to the
entity incurring such tax benefit pursuant to Treas. Reg.
Section 1.1502-79,
Xxxxxx shall pay to XXX.XXX (or the appropriate entity) the
amount of any tax savings to be realized thereby within thirty
(30) days after receipt by XXX.XXX of the XXX.XXX Final
Returns.
3.4 Allocation of Earnings and Profits for Taxable
Periods Ending Before or Including the Effective Date. All
earnings and profits of the Consolidated Group for all Taxable
Periods ending before or including the Effective Date shall be
allocated pursuant to Section 1552 of the Code among the
members of the Consolidated Group in accordance with the ratio
which that portion of the consolidated taxable income
attributable to each member of the Consolidated Group having
taxable income bears to the consolidated taxable income of the
Consolidated Group in accordance with Section 1552(a)(1) of
the Code and the Regulations thereunder.
3.5 Unused Carry-Forward Attributes. Xxxxxx and
XXX.XXX agree that, for purposes of all required returns and
reports with respect to Taxes, the amount of unused tax credits
under the Code attributable to XXX.XXX and each of the XXX.XXX
Pre-Closing Affiliates that may be carried forward to Taxable
Periods ending after the Effective Date shall, unless otherwise
required by law or regulations, be determined in accordance with
the principles of Treas. Reg.
Section 1.1502-79(c).
Any other carry-forward attributes shall similarly be determined
in accordance with applicable regulations.
3.6 Liability for Taxes With Respect to
Post-Effective Date Taxable Periods. The Xxxxxx Group shall pay
all Taxes of the Xxxxxx Group and shall be entitled to receive
and retain all refunds of Taxes of the Xxxxxx Group with respect
to Taxable Periods beginning after the Effective Date which are
attributable to the Xxxxxx Businesses. XXX.XXX shall pay all
Taxes of XXX.XXX and any XXX.XXX Post-Closing Affiliate and
shall be entitled to receive and retain all refunds of Taxes of
XXX.XXX and any XXX.XXX Post-Closing Affiliate for all periods
beginning after the Effective Date which are attributable to the
XXX.XXX Businesses.
3.7 Carry-Over Period Payments. Xxxxxx shall be
responsible for (and shall pay) any Taxes shown to be due on a
Tax Return for a Carry-Over Period filed pursuant to
Section 2.4(b) hereof by any member of the Consolidated
Group other than XXX.XXX or a XXX.XXX Pre-Closing Affiliate.
XXX.XXX shall be responsible for (and shall pay) any Taxes shown
to be due on a Tax Return for a Carry-Over Period filed by
XXX.XXX and any XXX.XXX Pre-Closing Affiliate pursuant to
Section 2.4(a) hereof.
3.8 Carry-Backs. XXX.XXX shall be entitled to any
refund of any Tax obtained by the Consolidated Group (or any
member of the Consolidated Group), including any refund obtained
as a result of the carry-back of losses or credits of XXX.XXX or
any XXX.XXX Post-Closing Affiliate from any taxable period
beginning after the Effective Date to any Taxable Period ending
before or including the Effective Date. The application of any
such carry-backs by XXX.XXX
and/or any
other current or former member of the Consolidated Group shall
be in accordance with the Code and the Treasury Regulations
promulgated thereunder. Notwithstanding this Section 3.8,
XXX.XXX and any XXX.XXX Post-Closing Affiliate shall have the
right, in its sole discretion, to make any election, including
the election under Section 172(b)(3) of the Code, which
would eliminate or limit the carry-back of any loss or credit to
any Taxable Period ending before or including the Effective Date.
3.9 Post-Closing Elections. At Xxxxxx’x request,
XXX.XXX and the XXX.XXX Pre-Closing Affiliates shall make
and/or join
with Xxxxxx in making any Tax elections reasonably requested by
Xxxxxx after the Effective Date, if the making of such election
does not have a material adverse impact on XXX.XXX or any
XXX.XXX Pre-Closing Affiliate for any post-Effective Date Tax
period.
3.10 Refunds. XXX.XXX and any XXX.XXX Pre-Closing
Affiliate shall be entitled to any refund of any Tax obtained by
the Consolidated Group (or any member of the Consolidated Group)
as a result of any audit, amendment or other change in the Tax
Return as filed by the Consolidated Group or any member thereof
to the extent the refund is attributable to XXX.XXX and any
XXX.XXX Pre-Closing Affiliate for any Taxable Period of the
Consolidated Group ending before or including the Effective
Date. Xxxxxx will cooperate with XXX.XXX and any XXX.XXX
Pre-Closing Affiliate in obtaining such refunds, including, but
not limited to, the filing of amended Tax Returns or refund
claims. Xxxxxx will immediately pay to XXX.XXX and any XXX.XXX
Pre-Closing Affiliate any Tax refund described in this
Section 3.10 when such refund is received by the Xxxxxx
Group. With the exception of Section 3.8, all other refunds
arising from Tax Returns filed for the Consolidated Group will
belong to Xxxxxx.
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ARTICLE 4
COOPERATION
AND EXCHANGE OF INFORMATION
4.1 Cooperation. XXX.XXX shall cooperate (and shall
cause any XXX.XXX Post-Closing Affiliate to cooperate) fully at
such time and to the extent reasonably requested by Xxxxxx in
connection with the preparation and filing of any Tax Return or
the conduct of any audit, dispute, proceeding, suit or action
concerning any issues or any other matter contemplated hereunder
relating to any Taxable Period ending before or including the
Effective Date. Such cooperation shall include, without
limitation, (a) the retention and provision on demand of
copies of books, records, documentation or other information
relating to any such Tax Return until the later of (i) the
expiration of the applicable statute of limitation (giving
effect to any extension, waiver, or mitigation thereof) and
(ii) in the event any claim has been made under this
Agreement for which such information is relevant, until a Final
Determination with respect to such claim; (b) the execution
of any document that may be necessary or reasonably helpful in
connection with the filing of any such Tax Return, or in
connection with any audit, proceeding, suit or action addressed
in the preceding sentence; and (c) the use of the
parties’ reasonable best efforts to obtain any
documentation from a governmental authority or a third party
that may be necessary or helpful in connection with the
foregoing. Each party shall make its employees and facilities
available on a mutually convenient basis to facilitate such
cooperation.
4.2 Tax Returns For Taxable Periods Including The
Effective Date. Xxxxxx will provide XXX.XXX with the opportunity
to review and comment upon any Tax Returns to be filed after the
date of this Agreement (including any amended returns), and will
provide XXX.XXX, promptly upon its request, with copies of such
Tax Returns (including any amended returns).
4.3 Audits. Xxxxxx will allow XXX.XXX and any XXX.XXX
Pre-Closing Affiliate and its counsel to participate (at the
expense of XXX.XXX or its XXX.XXX Pre-Closing Affiliate) in any
audits of Xxxxxx’x Consolidated Federal Income Tax Returns
to the extent that such returns relate to XXX.XXX and any
XXX.XXX Pre-Closing Affiliate. Xxxxxx will not settle any such
audit in a manner which would adversely affect XXX.XXX and any
XXX.XXX Pre-Closing Affiliate without the prior written consent
of XXX.XXX, which consent shall not be unreasonably withheld.
4.4 Carry-Backs. Xxxxxx will immediately pay to
XXX.XXX and any XXX.XXX Pre-Closing Affiliate any Tax refund (or
reduction in Tax liability) resulting from a carry-back of a
post-acquisition tax attribute of XXX.XXX and any XXX.XXX
Pre-Closing Affiliates into the Xxxxxx Consolidated Group Tax
Return, when such refund or reduction is realized by the Xxxxxx
Group. Xxxxxx will cooperate with XXX.XXX and any XXX.XXX
Pre-Closing Affiliate in obtaining such refunds (or reduction in
Tax liability), including, but not limited to, the filing of
amended Tax Returns or refund claims.
4.5 Contest Provisions. Xxxxxx shall have full
responsibility and discretion in the handling of any Tax
controversy, including, without limitation, an audit, a protest
to the Appeals Division of the IRS, and litigation in Tax Court
or any other court of competent jurisdiction involving a Tax
Return of the Consolidated Group or the Xxxxxx Group.
ARTICLE 5
MISCELLANEOUS
5.1 Tax Indemnification.
(a) Xxxxxx shall defend, indemnify and hold harmless
XXX.XXX and each XXX.XXX Pre-Closing Affiliate from and against
any liability, cost or expense, including, without limitation,
any fine, penalty, interest, charge or reasonable
accountant’s fee, for any Tax required under this Agreement
to be paid by Xxxxxx or any member of the Consolidated Group
other than XXX.XXX or a XXX.XXX Pre-Closing Affiliate.
(b) XXX.XXX shall indemnify and hold harmless Xxxxxx and
each member of the Xxxxxx Group from and against any liability,
cost or expense, including without limitation, any fine,
penalty, interest, charge or reasonable
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accountant’s fee, for any Tax required under this Agreement
to be paid by XXX.XXX or any XXX.XXX Post-Closing Affiliate.
(c) The amount of any payment made with respect to this
Section 5.1 shall include any additional amount necessary
to indemnify the recipient of the payment against any Taxes
imposed or incurred (including any increase in liability or
taxes resulting from a reduction in the amount of the loss), and
any reasonable professional fees or other litigation costs
incurred, in connection with such payment, and (ii) be
reduced by the amount of any tax benefit realized or to be
realized by the recipient as a result of its payment of the
Taxes being indemnified hereunder.
5.2 Breach. Xxxxxx shall defend, indemnify and hold
harmless XXX.XXX and each XXX.XXX Pre-Closing Affiliate and
XXX.XXX shall indemnify and hold harmless each member of the
Xxxxxx Group from and against any payment required to be made
under this Agreement as a result of the breach by a member of
the Xxxxxx Group or by XXX.XXX or a XXX.XXX Pre-Closing
Affiliate, as the case may be, of any obligation under this
Agreement.
5.3 Resolution of Certain Disputes.
(a) Arbitration. Disagreements between Xxxxxx and XXX.XXX
with respect to amounts that either claims is owed by the other
(or by an Affiliate of the other) under this Agreement, or other
matters under this Agreement that are not resolved by mutual
agreement, shall be resolved by arbitration pursuant to this
Section 5.3.
(b) Selection of the Arbitrator. Any arbitrator selected
pursuant to this Section 5.3(b) shall have at least ten
(10) years of experience in the field of corporate
taxation, shall be an attorney licensed to practice law in any
state of the United States or a certified public accountant
licensed to practice in any state of the United States and shall
not be or have been employed by or affiliated with either party.
The parties shall first attempt to agree on a mutually
satisfactory arbitrator. If the parties are unable to agree on a
mutually satisfactory arbitrator within thirty (30) days
after either party notifies the other in writing of a
disagreement requiring arbitration pursuant to this
Section 5.3 (15 days in the case of a disagreement
with respect to Section 4.1 through Section 4.5), each
party shall select an arbitrator. The two arbitrators thus
selected shall agree on and select a third arbitrator. If the
two arbitrators cannot agree on such third arbitrator within
thirty (30) days (fifteen (15) days in the case of a
disagreement with respect to Section 4.1 through
Section 4.5), the parties shall each select a different
arbitrator and renew the foregoing procedure. If the position of
an arbitrator is vacated, the person or persons who originally
selected the arbitrator to fill such position shall select a new
arbitrator to fill the position, unless the parties agree to
continue the arbitration with the remaining arbitrators. When
used hereinafter, the term “arbitrator” shall refer to
the three arbitrators so selected when appropriate and a
decision of a majority of such arbitrators shall constitute a
decision by the arbitrator in the appropriate context.
(c) Arbitration Procedures.
(i) The arbitration shall be conducted under the auspices
of the American Arbitration Association.
(ii) Each party within thirty (30) days after
engagement of the arbitrator (fifteen (15) days in the case
of a disagreement with respect to Section 4.1 through
Section 4.5) shall submit to the arbitrator a written
statement of the party’s position (including where relevant
the total net amount it asserts is owed by it or is due to it)
regarding the total amount in dispute.
(iii) The arbitrator shall base his decision on the
following standards. In the case of a factual dispute between
the parties, the arbitrator shall make a determination of the
correct facts. In the case of a dispute regarding a legal issue,
including the proper application of the Tax laws or the proper
interpretation of this Agreement, the arbitrator shall make a
determination in accordance with his best legal judgment. Upon
making determinations with respect to all factual and legal
issues in dispute, the arbitrator shall determine the amount due
by one party to the other or such other matter with respect to
the matter subject to the arbitration. Where relevant, as to
each matter in dispute, the arbitrator shall find in favor of
the party whose statement submitted pursuant to paragraph
(ii) above proposed the amount closest to the amount so
determined.
(iv) The arbitrator shall render a written decision stating
only the result of such decision as soon as practicable. The
arbitrator shall also orally explain the bases of such decision
to both parties as soon as practicable. If and only if both
parties request, the arbitrator shall state the bases of such
decision in writing. Where relevant, as to each matter in
dispute, the arbitrator’s decision shall be in an amount
equal to one of the total amounts asserted by one of the
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parties in the written statements submitted pursuant to
paragraph (ii) above. The arbitrator shall not, and is not
authorized to, render a decision in any other amount.
(v) The arbitrator’s decision shall be final and
binding on the parties. No appeal to any court is contemplated
by this Agreement and each party, to the maximum extent
permissible by law, waives and relinquishes all rights and
entitlements to appeal such decision.
(vi) The arbitrator shall determine a fair allocation of
the costs of the arbitration proceeding (including each
party’s legal fees) as between the parties.
5.4 Notices. Any notice, demand, claim or other
communication under this Agreement shall be in writing and shall
be deemed given upon delivery if delivered personally, upon
mailing if sent by certified mail, return receipt requested,
postage prepaid, or upon completion of transmission if sent by
telecopy or facsimile, to the parties at the following address:
If to Xxxxxx:
Xxxxxx Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx, Chief Executive Officer
If to XXX.XXX:
XXX.XXX Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx XxXxxxx, Vice President — Finance
5.5 Entire Agreement. This Agreement and the
applicable provisions of the Distribution Agreement constitute
the entire agreement of the parties concerning the subject
matter hereof, and supersedes all other agreements, whether or
not written, in respect of any Tax between or among any member
or members of the Xxxxxx Group, on the one hand, and XXX.XXX and
any XXX.XXX Pre-Closing Affiliate, on the other hand. This
Agreement may not be amended except by an agreement in writing,
signed by the parties hereto. In the event and to the extent
that there shall be a conflict between the provisions of this
Agreement and the Distribution Agreement, the provisions of this
Agreement shall control.
5.6 Governing Law. This Agreement shall be governed
by and construed in accordance with, the laws of the State of
New York.
5.7 Successors and Assigns. A party’s rights and
obligations under this Agreement may not be assigned without the
prior written consent of the other party. All of the provisions
of this Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors and permitted
assigns.
5.8 No Third Party Beneficiaries. This Agreement is
solely for the benefit of the parties to this Agreement and
their respective subsidiaries and should not be deemed to confer
upon third parties any remedy, claim, liability, reimbursement,
claim of action or other right in excess of those existing
without this Agreement.
5.9 Legal Enforceability. Any provision of this
Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to
the extent of the prohibition or unenforceability without
invalidating the remaining provisions. Any prohibition or
unenforceability of any provision of this Agreement in any
jurisdiction shall not invalidate or render unenforceable the
provision in any other jurisdiction.
5.10 Expenses. Unless otherwise expressly provided in
this Agreement or in the Distribution Agreement, each party
shall bear any and all expenses that arise from their respective
obligations under this Agreement. In the event either party to
this Agreement brings an action or proceeding for the breach or
enforcement of this Agreement, the prevailing party in such
action or proceeding, whether or not such action or proceeding
proceeds to final judgment, shall be entitled to recover as an
element of its costs, and not as damages, such reasonable
attorneys’ fees as may be awarded in the action or
proceeding in addition to whatever other relief to which the
prevailing party may be entitled.
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5.11 Confidentiality. Each party shall hold and cause
its Representatives to hold in strict confidence, unless
compelled to disclose by judicial or administrative process or,
in the opinion of its counsel, by other requirements of law, all
information (other than any such information relating solely to
the business or affairs of such party) concerning the other
parties hereto furnished it by such other party or its
Representatives pursuant to this Agreement (except to the extent
that such information can be shown to have been
(a) previously known by the party to which it was
furnished, (b) in the public domain through no fault of
such party, or (c) later lawfully acquired from other
sources by the party to which it was furnished), and each party
shall not release or disclose such information to any other
person, except its auditors, attorneys, financial advisors,
bankers and other consultants and advisors who shall be advised
of the provisions of this Section. Each party shall be deemed to
have satisfied its obligation to hold confidential information
concerning or supplied by the other party if it exercises the
same care as it takes to preserve confidentiality for its own
similar information.
5.12 Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original,
with the same effect as if the signature thereto and hereto were
upon the same instrument.
5.13 Headings. Introductory headings used in this
Agreement are solely for the convenience of the parties and
shall not be deemed to be limitations upon or descriptive of the
contents of the Section or sub-sections concerned.
5.14 Effective Date of Amended and Restated Tax
Sharing and Indemnity Agreement. The effective date of the
Agreement is November 1, 2007.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
XXX.XXX CORPORATION
| By: |
|
Name: Xxxxxxx XxXxxxx
| Title: | Vice President — Finance |
XXXXXX CORPORATION
| By: |
|
Name: Xxxxx Xxxxxx
| Title: | President and Chief Executive Officer |
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