Exhibit 10.12
TAX SHARING AGREEMENT
BY AND AMONG
NCRIC GROUP, INC.,
NCRIC, INC.,
NCRIC MSO, INC.,
COMMONWEALTH MEDICAL LIABILITY INSURANCE COMPANY,
NATIONAL CAPITAL INSURANCE BROKERAGE, LTD.,
NCRIC INSURANCE AGENCY, INC.,
NCRIC PHYSICIANS ORGANIZATION, INC.,
HCI VENTURES, LLC,
HEALTHCARE COMPLIANCE PURCHASING GROUP, LLC,
AND
AMERICAN CAPTIVE CORPORATION
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TAX SHARING AGREEMENT
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THIS TAX SHARING AGREEMENT (the "Agreement") is entered into as of the 1st
day of January, 2002 by and among NCRIC Group, Inc., a stock holding company
organized under the laws of the District of Columbia ("Holding Company"); and
its subsidiaries, NCRIC, Inc., a stock insurance company organized under the
laws of the District of Columbia ("Reorganized Stock Company"); NCRIC MSO, Inc.,
a corporation organized under the laws of the State of Delaware ("NCRIC MSO");
Commonwealth Medical Liability Insurance Company, a stock insurance company
organized under the laws of the Commonwealth of Virginia ("CML"); National
Capital Insurance Brokerage, Ltd., an insurance brokerage organized under the
laws of the District of Columbia ("NCIB"); NCRIC Insurance Agency, Inc., an
insurance agency organized under the laws of the District of Columbia ("NIA");
and NCRIC Physicians Organization, Inc., a physicians organization organized
under the laws of the District of Columbia ("NCRIC PO"); and HCI Ventures, LLC,
a limited liability company organized under the laws of Virginia; and HealthCare
Compliance Purchasing Group, LLC, a limited liability company organized under
the laws of the District of Columbia; and American Captive Corporation, a
corporation organized under the laws of the District of Columbia (collectively,
the "Subsidiaries"). NCRIC Group Inc. and all Subsidiaries sometimes hereinafter
are referred to as "Member Companies" and, collectively, as the "Affiliated
Group."
RECITALS:
1. Pursuant to a Plan of Reorganization dated July 24, 1998, NCRIC
reorganized (the "Reorganization") into Reorganized Stock Company with NCRIC
Group, Inc. as a stock holding company. As a result of the Reorganization, NCRIC
Group, Inc. owns directly or indirectly 100% of the issued and outstanding
capital stock of each of the Subsidiaries.
2. The Member Companies are members of an affiliated group within the
definition of section 1504(a) of the Internal Revenue Code of 1986, as amended
(the "Code").
3. The Affiliated Group will file a consolidated federal income tax return
for the year commencing January 1, 2002 and subsequent years.
4. It is the intention of the Member Companies that each Member Company
should contribute its fair and equitable share to the income and similar tax
liabilities payable by the Affiliated Group.
5. The Member Companies, by execution of this Agreement, intend to set
forth in writing the manner in which the Member Companies share in the
allocation of such taxes and to use the method described in this Agreement as
the method for (i) allocating the consolidated tax liability of the Affiliated
Group among the Member Companies; (ii) reimbursing NCRIC Group, Inc. for the
payment of such tax liability; and (iii) providing for the allocation and
payment of any tax refunds.
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NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the undersigned parties hereto agree as follows:
1. Computation of Member Shares. For each taxable period, the Member
Companies' respective shares of tax liability shall be determined as follows:
(a) Computation of Consolidated Tax. On or before the date provided by
law for payment of any federal income or similar tax by the Affiliated Group, a
computation shall be made of the Affiliated Group's consolidated tax liability,
including alternative minimum tax. The amount so computed is hereinafter
referred to as the "Consolidated Tax."
(b) Separate Member Tax. If a Member generates a loss for a taxable
year, or credit that cannot be utilized to reduce such Member's separate return
tax liability ("Separate Tax") in the year that the loss or credit arises, such
loss or credit shall first be utilized to the extent it results in an actual
cash reduction in the Consolidated Tax liability for the taxable year in which
the loss or credit was generated or for prior taxable years during the covered
period to which such loss or credit could be carried under the applicable
carryback provisions of the Code (the carryback years).
(c) Allocation. The Consolidated Tax shall be apportioned among the
Member Companies, under Treasury Regulation 1.1552-1(a)(2), based upon the ratio
of each Member Company's Separate Tax to the total of the Member Companies'
Separate Taxes. Accordingly, the amount of Consolidated Tax allocable to any
Member Company will be equal to the Consolidated Tax multiplied by a fraction,
the numerator of which is the Member Company's Separate Tax and the denominator
of which is the sum of the Separate Taxes for all Member Companies.
(d) Entitlement to Payment or Credit . Notwithstanding that one or more
Member Companies may, in a particular tax period, realize losses, credits or
other tax benefits which, on a consolidated basis, reduce the Consolidated Tax,
such Member Company or Companies shall be entitled to payment or credit
therefor.
2. Payments by Member Companies. If for any taxable period there is a
Separate Tax with reference to a Member Company, then such Member Company shall
promptly pay to NCRIC Group, Inc. an amount equal to the Member Company's share
of the Consolidated Tax, and NCRIC Group, Inc. shall promptly pay to each loss
Company the allocated tax benefit.
3. Estimated Tax Payments. In NCRIC Group, Inc.'s discretion, the
provisions for payment of the Consolidated Tax for a taxable period shall apply
to the payment of estimated tax installments due for such taxable period. In the
event NCRIC Group, Inc. provides notice to the Subsidiaries of liability for
estimated tax payments, each Subsidiary shall pay to NCRIC Group, Inc. its share
of each estimated tax payment within thirty (30) days of receiving such notice,
but in no event later than the due date for each such estimated tax payment. Any
amounts paid by a Subsidiary
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on account of a separate return or separate estimated tax payments which are
credited against the Consolidated Tax shall be included in determining the
payments due from such Subsidiary. Any overpayment of estimated tax shall be
refunded to the Subsidiary.
4. Audit Results. If, as a result of an amended return, audit, or other
adjustment, the Consolidated Tax is adjusted or it is determined that there was
an error in the computation of any payment hereunder, the liability of each
Member Company shall be redetermined to give effect to such adjustment or the
correction of such error. An appropriate return of payment or additional payment
shall promptly be made to or by each Member Company, as the case may be, within
ninety (90) days of NCRIC Group, Inc.'s providing notice of the adjustment,
together with interest thereon in accordance with Internal Revenue Service
requirements. Such return of payment or additional payment shall be made
regardless of whether at that date NCRIC Group, Inc. and all Member Companies
are still joining in consolidated returns.
5. Separate Use of Losses. If part or all of an unused loss or tax credit
is allocated to a Member Company pursuant to Treasury Regulation 1.1502-79, as
in effect from time to time, and is carried back or forward to a year in which
such Member Company filed a separate return or a consolidated return with
another affiliated group, any refund or reduction in tax liability arising from
the carryback or carryover shall be paid by such Member Company to NCRIC Group,
Inc. Notwithstanding the above, NCRIC Group, Inc. shall determine whether an
election shall be made not to carry back part or all of a consolidated net
operating loss for any taxable year in accordance with Code section 172(b)(3).
6. Payments Due. Except as otherwise provided in this Agreement, all
settlements between and among Member Companies of the Affiliated Group under
this Agreement shall be made within ninety (90) days after the date of filing of
the consolidated income tax return; provided further, where a refund from the
taxing authority is due to the Affiliated Group, NCRIC Group, Inc. may defer
payment to Member Companies for ninety (90) days after receipt of such refund.
All payments to be made to Member Companies shall be made in cash, in securities
eligible as investments by insurers under the insurance laws of their
domiciliary jurisdictions, at market value, or any combination of cash or
eligible securities, or, in NCRIC Group, Inc.'s discretion, by credit against
offsetting liabilities owed by the Member Company entitled to such payment.
7. Termination. This Agreement shall terminate if:
(a) the undersigned parties agree in writing to such termination;
(b) A Member Company's membership in the Affiliated Group ceases or is
terminated for any reason whatsoever; or
(c) The Affiliated Group fails to file a consolidated return for any
taxable year when due.
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Notwithstanding the termination of this Agreement, its provisions shall
remain in effect with respect to any period of time during the tax year in which
termination occurs, for which the income of the terminating party must be
included in the consolidated return.
8. Assignment. The respective rights and obligations of each of the
parties to this Agreement may not be assigned by any party without the prior
written consent of the other parties hereto.
9. Binding Effect. This Agreement is binding upon and inures to the
benefit of the Member Companies and to any successor of a Member Company,
whether by merger or otherwise, to the same extent as though such successor were
an original party hereto.
10. Arbitration. Any disputes arising out of the interpretation or
implementation of the terms and conditions of this Agreement shall be submitted
to binding arbitration in accordance with the rules then in effect of the
American Arbitration Association.
11. Access to Materials. Notwithstanding termination of this Agreement,
and during its term, all materials, including, but not limited to, tax returns,
supporting schedules, work papers, correspondence and other documents relating
to consolidated income tax returns filed by the Affiliated Group shall be made
available to any party to this Agreement during regular business hours.
12. Inclusion of a New Member Company. If during a consolidated return
period any Member Company acquires or organizes another corporation that is
required to be included in the consolidated return (or if any corporation which
qualifies for the Affiliated Group but is not now included in the consolidated
return elects to be included in the return), then such corporation shall join in
and become a party to this Agreement by executing the master copy of this
Agreement which shall be maintained at NCRIC Group, Inc.'s headquarters. It will
not be necessary for each Member to re-execute the Agreement; the new Members
may simply execute the existing Agreement, and such Agreement shall be binding
on the new Members and all of the then existing Members.
13. Effective Date. This Agreement shall be effective for the first
federal income or similar tax return due for the year commencing January 1,
2002.
14. Entire Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof, and there are no agreements,
representations or warranties not contained herein.
15. Modification. This Agreement may not be modified or amended except by
written instrument executed with the same formality as this Agreement.
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16. Prior Agreements. This Agreement supersedes all prior agreements
between NCRIC Group, Inc. and its affiliates with respect to any period to which
a federal income or similar tax return subject to this Agreement relates.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
NCRIC GROUP, INC.
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President
NCRIC, INC.
--------------------------------------------
President
NCRIC MSO, INC.
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President
COMMONWEALTH MEDICAL LIABILITY
INSURANCE COMPANY
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President
NATIONAL CAPITAL INSURANCE
BROKERAGE, LTD.
--------------------------------------------
President
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NCRIC INSURANCE AGENCY, INC.
--------------------------------------------
President
NCRIC PHYSICIANS ORGANIZATION, INC.
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President
HCI VENTURES, LLC
By: NCRIC MSO, Inc., its Managing Member
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President
HEALTHCARE COMPLIANCE PURCHASING
GROUP, LLC
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President
AMERICAN CAPTIVE CORPORATION
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President
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TABLE OF CONTENTS
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1. Computation of Member Shares........................................105
2. Payments by Member Companies........................................105
3. Estimated Tax Payments..............................................105
4. Audit Results.......................................................106
5. Separate Use of Losses..............................................106
6. Payments Due........................................................106
7. Termination.........................................................106
8. Assignment..........................................................107
9. Binding Effect......................................................107
10. Arbitration.........................................................107
11. Access to Materials.................................................107
12. Inclusion of a New Member Company...................................107
13. Effective Date......................................................107
14. Entire Agreement....................................................107
15. Modification........................................................107
16. Prior Agreements....................................................108
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