FORM OF
TAX DISAFFILIATION AGREEMENT
THIS AGREEMENT dated as of this 16th day of August 1999, by and between
Kansas City Southern Industries, Inc., a Delaware corporation ("KCSI") and
Xxxxxxxx Financial, Inc., a Delaware corporation ("Xxxxxxxx"):
WHEREAS, KCSI owns all of the issued and outstanding common stock of
Xxxxxxxx ("Xxxxxxxx shares"), which was incorporated as FAM Holdings, Inc. on
January 23, 1998 and which changed its name to Xxxxxxxx Financial, Inc. on
July 8, 1999;
WHEREAS, KCSI is the common parent of an affiliated group of
corporations within the meaning of Section 1504(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and the members of the affiliated
group, which include Xxxxxxxx and its subsidiaries beginning in 1998, have
prior to 1999 joined in filing consolidated federal income tax returns which
would have included Xxxxxxxx if Xxxxxxxx had been in existence and in its
current position in the affiliated group of corporations;
WHEREAS, KCSI plans to distribute all or substantially all of the
Xxxxxxxx shares to the stockholders of KCSI in a tax-free transaction
pursuant to Code Section 355 (the "Spin-off") which will reduce KCSI's
ownership of Xxxxxxxx, so that Xxxxxxxx and its subsidiaries will no longer
be members of the KCSI affiliated group for federal income tax purposes;
WHEREAS, KCSI submitted a private letter ruling request to the Internal
Revenue Service (the "IRS") to the effect that, for United States federal
income tax purposes, no gain or loss will be recognized by KCSI or Xxxxxxxx
from the Spin-off or by the holders of KCSI common stock upon receipt of
Xxxxxxxx shares in the Spin-off (the initial submission on January 26, 1999
(the "Initial Submission") and all supplements thereto referred to herein as
the "Ruling Request");
WHEREAS, KCSI and Xxxxxxxx desire on behalf of themselves, their
subsidiaries and their successors to set forth their rights and obligations
with respect to taxes due for periods before and after the date of the Spin-
off (the "Disaffiliation Date") upon which Disaffiliation Date Xxxxxxxx and
its subsidiaries will no longer be members of the KCSI affiliated group,
including obligations with respect to any adjustments to the consolidated
federal income tax returns and any consolidated or combined state tax returns
of KCSI through the Disaffiliation Date.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the parties agree as follows:
ARTICLE I. PREPARATION AND FILING OF TAX RETURNS
Section 1.1 RESPONSIBILITY FOR PREPARATION OF CONSOLIDATED AND COMBINED
RETURNS. KCSI shall timely file or cause to be filed all Tax Returns which
are filed on a consolidated or combined basis including Xxxxxxxx and its U.S.
Subsidiaries (a) for all periods ending on or prior to the Disaffiliation
Date and (b) that are required to be filed for the taxable year of the KCSI
affiliated group that begins before and ends on or after the Disaffiliation
Date. In the absence of a change in controlling law, all Tax Returns filed
after the date of this Agreement shall be prepared on a basis consistent with
the elections, accounting methods, conventions, and principles of taxation
used for the most recent taxable periods for which Tax Returns involving
similar tax items have been filed except to the extent that an inconsistent
position would not result in an increase in the taxes paid or payable by
either Xxxxxxxx or KCSI or if mutually agreed between Xxxxxxxx and KCSI.
Subject to the provisions of this Agreement, all decisions relating to the
preparation of Tax Returns shall be made in the reasonable good faith
judgment of the party responsible under this Agreement for such preparation.
For purposes of this Agreement, "Tax Returns" shall mean any return,
report, filing, declaration, 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 period with any taxing authority (whether domestic or foreign) in
connection with any tax or taxes (whether or not a payment is required to be
made with respect to such filing). For purposes of this Agreement, (i)
"Subsidiary" shall mean any entity taxable as a corporation as to which the
ownership test of Code Section 1504(a)(2) (or any predecessor provision) is
now or was in the past met, but including any such entity only for the period
or periods as to which such ownership test was met; (ii) the "Xxxxxxxx Group"
shall mean the Xxxxxxxx Group as defined in the Intercompany Agreement
between KCSI and Xxxxxxxx (the "Intercompany Agreement") and shown on Exhibit
D thereto, except where the context of this Agreement shall indicate a
discussion of consolidated or combined Tax Returns, in which case the
Xxxxxxxx Group shall mean Xxxxxxxx and its U.S. Subsidiaries only; and (iii)
the "KCSI Group" shall mean the KCSI Group as defined in the Intercompany
Agreement and shown on Exhibit E thereto (except the KCSI Group also shall
include KCSI for actions, occurrences or omissions arising after the
Disaffiliation Date), except where the context of this Agreement shall
indicate a discussion of consolidated or combined Tax Returns, in which case
the KCSI Group shall mean KCSI and its U.S. Subsidiaries only. Xxxxxxxx
shall provide, at Xxxxxxxx'x expense and to the extent permitted by law,
consistent with Xxxxxxxx'x past tax accounting methods, information necessary
for KCSI to complete the portion of the KCSI consolidated and combined Tax
Returns relating to the Xxxxxxxx Group for the period through the
Disaffiliation Date (or such longer period as necessary for the ratable
allocation election discussed below) and any periods thereafter which are
included in a KCSI consolidated or combined Tax Return. Each Tax Return and
supporting details shall provide the type of information on members of the
Xxxxxxxx Group as is consistent with past practice and shall be prepared in
accordance with Section 1.3 hereof. For purposes of each federal income Tax
Return, Xxxxxxxx and KCSI shall make an irrevocable ratable allocation
election under Treasury Regulation Section 1.1502-76(b)(2)(ii) or any
successor provision, and each shall take all action reasonably required of it
to comply with the requirements of such election. Xxxxxxxx shall submit all
such information and supporting details to KCSI at least forty-five (45) days
prior to the date on which the consolidated or combined Tax Returns are due,
including extensions.
Section 1.2 PAYMENT OF TAXES. With respect to periods covered by Tax
Returns prepared in accordance with Section 1.1, Xxxxxxxx shall make
estimated tax payments in accordance with Section 1.3 hereof and also shall
pay to KCSI in time to allow KCSI to pay from funds received from Xxxxxxxx
any additional taxes of the Xxxxxxxx Group which are due at the time of
filing any request for an extension of the time to file a Tax Return. Prior
to the filing of such consolidated or combined Tax Returns, Xxxxxxxx shall
pay to KCSI in time to allow KCSI to pay from funds received from Xxxxxxxx
the excess, if any, of the final tax liability (and any interest and
penalties due thereon at the rate applicable to tax payment balances due) of
the Xxxxxxxx Group over any estimated tax payments or other credits relating
to the Xxxxxxxx Group, and KCSI shall pay to Xxxxxxxx the excess (including
any interest thereon at the rate applicable to tax payment balances due), if
any, of any such estimated tax payments and other credits over the final tax
liability of the Xxxxxxxx Group. Such payments shall be made within 15 days
after the filing of any federal consolidated Tax Return and, with respect to
all consolidated or combined state Tax Returns covering the same tax period,
within 15 days after the filing of the last such state Tax Return, except
that if the payment called for by this Section 1.2 is the subject of a
request for a refund, within two days after the receipt of the refund or the
crediting of the refund amount against other tax liability.
Section 1.3 XXXXXXXX TAX ALLOCATION AGREEMENT. Solely for the purpose
of Tax Returns prepared after the date of this Agreement in accordance with
Section 1.1 and with respect to the periods covered by such Tax Returns,
Xxxxxxxx and KCSI agree as follows:
(a) KCSI and Xxxxxxxx shall execute and file such consents, elections
and other documents as may be required or appropriate for the proper filing
of such Tax Returns.
(b) KCSI and Xxxxxxxx shall maintain and shall cause any U.S.
Subsidiaries now in existence or subsequently formed to maintain concurrent
fiscal years.
(c) With respect to consolidated Federal income Tax Returns:
i) Xxxxxxxx shall pay to KCSI the amount (if any) of Federal income
taxes for which Xxxxxxxx would have been liable for that year, computed as
though Xxxxxxxx had filed a separate Tax Return for the Xxxxxxxx Group. For
purposes of this Agreement, Xxxxxxxx'x tax liability if it had filed a
separate Tax Return shall be computed using the maximum corporate income tax
rate then in effect (disregarding any graduated tax rates).
ii) A computation of Xxxxxxxx'x estimated tax liability for each
calendar quarter shall be made on a cumulative year-to-date basis, and
Xxxxxxxx shall pay to KCSI in time to allow KCSI to pay from funds received
from Xxxxxxxx the amount of estimated tax calculated for such quarter and due
on the following dates: April 15 for the first calendar quarter; June 15 for
the second calendar quarter; September 15 for the third calendar quarter; and
December 15 for the fourth calendar quarter.
(d) In any state in which KCSI files consolidated or combined Tax
Returns:
(i) Xxxxxxxx shall pay to KCSI a portion of income taxes payable
to such state on a consolidated or combined basis determined by allocating
among the entities included in such Tax Return on the basis of the separate
taxable income or loss of each such entity which is reported to such state in
such Tax Return. If a loss is involved, the amount of taxes payable shall be
computed first without including such loss and allocated as above; amounts in
excess of taxes actually payable shall then be paid to the loss companies in
proportion to their taxable losses.
(ii) A computation of Xxxxxxxx'x estimated state tax liability for
each calendar quarter shall be made on a cumulative year-to-date basis, and
Xxxxxxxx shall make payment of estimated state income taxes to KCSI on the
dates on which estimated state income tax payments are required to be made in
the states in question.
(iii) Until Xxxxxxxx is able to obtain any consent required to
assign and transfer to Xxxxxxxx the Tax Allocation Agreement between KCSI and
Janus Capital Corporation dated January 1, 1989, as amended effective January
1, 1998:
(A) Xxxxxxxx shall be required to perform, for KCSI, all
obligations KCSI is obligated to perform for another party under such
agreement at the time and in the same manner as KCSI is required to perform
its obligation to such other party.
(B) All benefits and assets that are received by KCSI under
such agreement shall be transferred to Xxxxxxxx at the same time and in the
same manner as such benefits and assets are received by KCSI.
(C) If Xxxxxxxx is required to deliver any funds to KCSI by
reason of the foregoing, Xxxxxxxx shall deliver such funds to KCSI in time so
as to allow KCSI to use such funds to satisfy its obligations under such
agreement.
(D) If KCSI receives any notice or has any elections or
choices under such agreement, KCSI shall provide a copy of any such notice to
Xxxxxxxx within two (2) business days of KCSI's receipt thereof, and KCSI
shall make any election or choice under such agreement only as approved in
writing by Xxxxxxxx.
(E) KCSI will not provide any consents or waivers under
such agreement or agree to any amendment of such agreement without the prior
written approval of Xxxxxxxx.
Section 1.4 OTHER RETURNS. KCSI shall timely file or cause to be filed
all other Tax Returns required with respect to the KCSI Group, and Xxxxxxxx
shall timely file or cause to be filed all other Tax Returns with respect to
the Xxxxxxxx Group.
ARTICLE II. ACTIONS WITH RESPECT TO SPIN-OFF
Section 2.1 KCSI GROUP.
(a) KCSI agrees that it will not take, and it will not permit any
member of the KCSI Group to take, any action that will cause the Spin-off to
fail to qualify as a tax-free spin-off under Code Section 355 unless required
to do so by law.
(b) KCSI represents and warrants that with respect to the portions of
the representations made on pages 52 and 53 of the Initial Submission labeled
(j), (k), (q), (s), (t) and (u) which relate to the KCSI Group, such
representations are true and correct, and none of the KCSI Group has engaged
in discussions which would cause such representations to be untrue.
(c) KCSI represents and warrants that with respect to the portions of
the representations which relate to the KCSI Group made in the letter ruling
dated July 9, 1999 issued to KCSI with respect to the Spin-off (the "Letter
Ruling", in which KCSI is referred to as Distributing), such representations
are true and correct, and none of the KCSI Group has engaged in discussions
which would cause such representations to be untrue.
(d) For a period of three years after the Disaffiliation Date, KCSI
agrees to notify Xxxxxxxx: (i) at least 30 days before KCSI issues any common
stock or any interest convertible into common stock (all such interests "KCSI
Common Stock") (other than pursuant to the exercise of stock options or the
KCSI Employee Stock Purchase Plan) or (ii) within five days after KCSI
becomes aware of any acquisition, exchange, merger or other corporate
transaction which would involve 10% or more of the then outstanding KCSI
Common Stock. The notice shall include a description of the occurrence that
will involve KCSI Common Stock.
Section 2.2 XXXXXXXX GROUP.
(a) Xxxxxxxx agrees that it will not take, and it will not permit any
member of the Xxxxxxxx Group to take, any action that will cause the Spin-off
to fail to qualify as a tax-free spin-off under Code Section 355 unless
required to do so by law.
(b) Xxxxxxxx represents and warrants that with respect to the portions
of the representations made on pages 52 and 53 of the Initial Submission
labeled (j), (k), (q), (r) and (u) which relate to the Xxxxxxxx Group, such
representations are true and correct, and none of the Xxxxxxxx Group has
engaged in discussions which would cause such representations to be untrue.
(c) Xxxxxxxx represents and warrants that with respect to the portions
of the representations made in the Letter Ruling which relate to the Xxxxxxxx
Group (Xxxxxxxx is referred to in the Letter Ruling as Controlled), such
representations are true and correct, and none of the Xxxxxxxx Group has
engaged in discussions which would cause such representations to be untrue.
(d) For a period of three years after the Disaffiliation Date, Xxxxxxxx
agrees to notify KCSI: (i) at least 30 days before Xxxxxxxx issues any
common stock or any interest convertible into common stock (all such
interests "Xxxxxxxx Common Stock") (other than pursuant to the exercise of
stock options or the Xxxxxxxx Employee Stock Purchase Plan) or (ii) within
five days after Xxxxxxxx becomes aware of any acquisition, exchange, merger
or other corporate transaction which would involve 10% or more of the then
outstanding KCSI Common Stock. The notice shall include a description of the
occurrence that will involve Xxxxxxxx Common Stock.
Section 2.3 INFORMATION TO STOCKHOLDERS. KCSI agrees that it shall
provide each KCSI stockholder as of the record date fixed by the KCSI Board
of Directors to determine the KCSI stockholders who will receive Xxxxxxxx
common stock in the Spin-off the information related to the Spin-off required
to be attached to each such stockholder's federal income Tax Return for the
taxable year in which the Spin-off occurs.
ARTICLE III. INDEMNIFICATION OF TAX LIABILITIES
Section 3.1 INDEMNIFICATION BY KCSI. KCSI shall indemnify and hold
harmless Xxxxxxxx and each member of the Xxxxxxxx Group against liability for
(a) any and all Taxes attributable to the income, operations, or assets
of any of the KCSI Group, whether arising before or after the Disaffiliation
Date;
(b) any and all Taxes or other loss resulting from any breach by any of
the KCSI Group of any representation, warranty or covenant contained in this
Agreement; and
(c) any and all Taxes imposed on any member of the Xxxxxxxx Group or on
any KCSI or Xxxxxxxx stockholder, and any and all claims brought by a KCSI or
Xxxxxxxx stockholder against any member of the Xxxxxxxx Group, including
Taxes or claims which arise as a result of the failure of the Spin-off to
qualify as a tax-free spin-off under Code Section 355 by reason of (w) any
act or failure to act by any member of the KCSI Group, (x) any other party's
actions with respect to the KCSI Group (including any change of ownership of
KCSI), (y) any inaccurate information regarding any member of the KCSI Group
contained in the Ruling Request or any breach of any representation set forth
in the Ruling Request or the Letter Ruling with respect to any member of the
KCSI Group, or (z) any omission from the Ruling Request of information with
respect to any member of the KCSI Group required to be included in a private
letter ruling request under Code Section 355 by Rev. Proc. 96-30, 1996-1 C.B.
696.
As used herein, "Taxes" means all taxes of any kind, including, without
limitation, those on or measured by or referred to as income, gross receipts,
sales, use, ad valorem, franchise, profits, license, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, valued added,
property or windfall profit taxes, customs, duties or similar fees,
assessments or charges of any kind whatsoever, together with any interest,
penalties and other additions to tax imposed by any governmental authority,
domestic or foreign.
Section 3.2 INDEMNIFICATION BY XXXXXXXX. Xxxxxxxx shall indemnify and
hold harmless KCSI and each member of the KCSI Group against liability for
(a) any and all Taxes (including any Taxes arising from the triggering
of any excess loss account relating to KCSI's ownership of Xxxxxxxx stock)
attributable to the income, operations or assets of the Xxxxxxxx Group,
whether arising before or after the Disaffiliation Date;
(b) any and all Taxes or other loss resulting from any breach by any of
the Xxxxxxxx Group of any representation, warranty or covenant contained in
this Agreement; and
(c) any and all Taxes imposed on any member of the KCSI Group or on any
KCSI or Xxxxxxxx stockholder, and any and all claims brought by a KCSI or
Xxxxxxxx stockholder against any member of the KCSI Group, including Taxes or
claims which arise as a result of the failure of the Spin-off to qualify as a
tax-free spin-off under Code Section 355 solely by reason of (w) any act or
failure to act by any member of the Xxxxxxxx Group, (x) any other party's
actions with respect to the Xxxxxxxx Group (including any change of ownership
of Xxxxxxxx), (y) any inaccurate information regarding any member of the
Xxxxxxxx Group contained in the Ruling Request or any breach of any
representation set forth in the Ruling Request or the Letter Ruling with
respect to any member of the Xxxxxxxx Group, or (z) any omission from the
Ruling Request of information with respect to any member of the Xxxxxxxx
Group required to be included in a private letter ruling request under Code
Section 355 by Rev. Proc. 96-30, 1996-1 C.B. 696.
Section 3.3 DIVISION OF TAX LIABILITY. If there should arise any Taxes
incurred with respect to periods prior to the Spin-off which are not
attributable solely to either the Xxxxxxxx Group or the KCSI Group, such
Taxes shall be divided between the Xxxxxxxx Group and the KCSI Group in
proportion to each of the Xxxxxxxx Group's and the KCSI Group's relative
responsibility, except that any Taxes incurred with respect to issues for
which a specific reserve has been established shall be paid by whichever of
Xxxxxxxx or KCSI (or the particular KCSI Group or Xxxxxxxx Group member) has
been allocated such reserve. If there should arise any Taxes the origin of
which cannot be determined to be partially or solely with the Xxxxxxxx Group
or the KCSI Group, such Taxes shall be divided equally between the Xxxxxxxx
Group and the KCSI Group.
Section 3.4 PAYMENT TREATMENT. All payments made pursuant to Section
3.1 or 3.2 with respect to periods for which consolidated or combined Tax
Returns were filed and which included members of both the KCSI Group and the
Xxxxxxxx Group shall be treated, to the fullest extent possible, as payments
made directly to the taxing authority by a taxpayer having a direct
obligation (whether joint or joint and several) to the taxing authority.
ARTICLE IV. ADDITIONAL TAXES, REFUNDS AND CARRYBACKS
Section 4.1 ADDITIONAL TAXES AND TAX REFUNDS. Taxes resulting from any
adjustments in any consolidated Tax Return or consolidated or combined Tax
Return year which are attributable to Xxxxxxxx or its Subsidiaries (including
years ended prior to fiscal 1999) shall be borne by Xxxxxxxx, and KCSI shall
pay to Xxxxxxxx any refund of any Tax and any interest on such refund which
is received as the result of an adjustment in any consolidated Tax Return or
consolidated or combined Tax Return year after the Disaffiliation Date by any
member of the KCSI Group or credited after the Disaffiliation Date against
any liability of any member of the KCSI Group and which is attributable to
the income, operations or assets of any member of the Xxxxxxxx Group. Such
payment shall be made within ten days of receipt or the crediting of such
refund. The crediting of a refund shall be deemed to occur at the time the
liability would have been paid absent the refund.
Section 4.2 CARRYBACKS. If any member of the Xxxxxxxx Group generates
a deduction, loss or credit for any Tax period ending after the
Disaffiliation Date that can be carried back to any prior consolidated or
combined Tax year which includes members of both the KCSI Group and the
Xxxxxxxx Group, KCSI shall, at the written request of Xxxxxxxx and at
Xxxxxxxx'x expense, prepare and file an amended Tax Return for such prior
year reflecting such carryback. KCSI shall pay to Xxxxxxxx an amount equal
to any Tax refund and interest received with respect to such carryback in
accordance with Section 4.1
V. TAX AUDITS
Section 5.1 GENERAL. Except as provided in Section 5.2, KCSI shall
have sole responsibility for all audits and other proceedings with respect to
Taxes or Tax Returns of the KCSI Group, and Xxxxxxxx shall have sole
responsibility for all audits and other proceedings with respect to Taxes or
Tax Returns of the Xxxxxxxx Group. If there should arise any audit expenses
(including legal and accounting expenses) incurred with respect to periods
prior to the Spin-off which are not attributable solely to either the
Xxxxxxxx Group or the KCSI Group, such audit expenses shall be divided
between the Xxxxxxxx Group and the KCSI Group in proportion to each of the
Xxxxxxxx Group's and the KCSI Group's relative responsibility, except that
any audit expenses incurred with respect to issues for which a specific
reserve has been established shall be paid by whichever of Xxxxxxxx or KCSI
(or the particular KCSI Group or Xxxxxxxx Group member) has been allocated
such reserve. If there should arise any audit expense the origin of which
cannot be determined to be partially or solely with the Xxxxxxxx Group or the
KCSI Group, such audit expense shall be divided equally between the Xxxxxxxx
Group and the KCSI Group, and the Xxxxxxxx Group and the KCSI Group shall
manage the underlying audit issue jointly and shall have joint authority and
responsibility with respect to such audit issue.
Section 5.2 INDEMNIFIED CLAIMS. KCSI or Xxxxxxxx, as the case may be,
shall promptly notify the other in writing of any proposed adjustment to a
Tax Return, or obligation that may result in liability of the other party
(the "Indemnitor") under this Agreement. The Indemnitor shall have the right
to control and contest the proposed adjustment and to employ counsel, experts
and consultants of its choice at its expense; provided, however, that if the
proposed adjustment involves a consolidated or combined Tax Return for which
the indemnified party is responsible and proceedings involving the proposed
adjustment cannot be separated from other proposed adjustments or
proceedings, the Indemnitor shall not settle the proposed adjustment without
the written consent of the indemnified party, which consent shall not be
unreasonably withheld. The Indemnitor shall provide the indemnified party
with such notice and information as are reasonably necessary to keep the
indemnified party reasonably apprised of the progress of any audit, protest
or other proceeding involving the proposed adjustment and shall, in good
faith, consider all reasonable suggestions of the indemnified party with
respect to the handling of such audit, protest or other proceeding.
ARTICLE VI. STOCK OPTIONS
Section 6.1 SUBSTITUTED OPTIONS. As part of the Spin-off, KCSI plans to
substitute options for all KCSI non-qualified stock options outstanding on
the day after the record date for the Spin-off ("Options") in order to
provide for the equitable adjustment of the Options as allowed by the KCSI
stock option plans pursuant to which the Options have been granted. All such
Options will remain outstanding with an adjusted exercise price ("New KCSI
Options"), and holders of the Options will receive separately exercisable
options to buy Xxxxxxxx common stock ("New Xxxxxxxx Options") (collectively
the New KCSI Options and the New Xxxxxxxx Options are referred to as
"Substituted Options").
Section 6.2 WITHHOLDING AND PAYROLL TAXES. KCSI and Xxxxxxxx each
agree that the issuer of the stock issued upon the exercise of a Substituted
Option shall withhold all federal, state, local or other taxes required to be
withheld in connection with the exercise of a Substituted Option, and shall
provide a statement to the optionee (or his or her estate) showing the
compensation income recognized under Code Section 83 during the applicable
calendar year. KCSI and Xxxxxxxx also agree that the company which is paying
the employee (or if the optionee exercising is no longer employed, the
company which was paying such optionee at the time he or she left service) at
the time of exercise of a Substituted Option shall pay the employer portion
of any FICA (including Medicare) and Railroad Retirement taxes due on the
exercise of the Substituted Options.
Section 6.3 ISSUANCE OF STOCK. KCSI and Xxxxxxxx each agree to issue
shares of their stock upon the exercise of the New KCSI Options and the New
Xxxxxxxx Options, respectively, and agree that holders of the Substituted
Options shall purchase shares in each of KCSI and Xxxxxxxx directly from the
relevant corporation upon the exercise of a New KCSI Option or a New Xxxxxxxx
Option, as the case may be.
ARTICLE VII. COOPERATION
KCSI and Xxxxxxxx shall cooperate with each other as necessary in the
filing of Tax Returns and the conduct of audits and other proceedings and
each shall execute and deliver such powers of attorney and other documents
and make available such information and documents as are necessary to carry
out the intent of this Agreement. Xxxxxxxx shall have the right to review Tax
Returns prior to the time such Tax Returns are filed pursuant to Section 1.1
and any amended KCSI Tax Returns for periods prior to the Disaffiliation Date
which may affect the liability of any member of the Xxxxxxxx Group, and may
control the presentation in such Tax Returns of any matters which affect any
member of the Xxxxxxxx Group's liability.
Each party agrees to notify the other party of any audit adjustment
which does not result in Tax liability but can be reasonably expected to
affect Tax Returns of the other party or any of its subsidiaries. KCSI and
Xxxxxxxx shall retain adequate records, documents, accounting data and other
information necessary for the preparation and filing of all Tax Returns
required to be filed by KCSI or any member of the KCSI Group or the Xxxxxxxx
Group, respectively, and for any audits and litigation relating to such Tax
Returns or to any Taxes payable by KCSI or any member of the KCSI Group or
the Xxxxxxxx Group, respectively, for periods prior to the Disaffiliation
Date and to give the other party reasonable access to such records,
documents, accounting data and other information and to its personnel and
premises, for the purpose of the review or audit of such Tax Returns and
obtaining copies thereof to the extent relevant to an obligation or liability
of a party under this Agreement. KCSI shall provide to Xxxxxxxx, upon
reasonable request, all tax accounting information in KCSI's possession or
control relating to Xxxxxxxx'x, or any of Xxxxxxxx'x Subsidiaries, operations
and assets (for whatever purpose deemed necessary by Xxxxxxxx), including,
without limitation, earnings and profits studies and calculations, asset
depreciation and amortization schedules and other such information. Tax
Returns and support files and work papers for periods ending on or prior to
the Disaffiliation Date shall remain in the possession of KCSI, subject to
the provisions of the two preceding sentences. The obligations set forth in
this paragraph shall continue until the final conclusion of any audits or
litigation to which the records and information relate or until expiration of
all applicable statutes of limitations, whichever is longer.
ARTICLE VIII. MISCELLANEOUS PROVISIONS
Section 8.1 NOTICES. Any notice required or permitted to be given
pursuant to this Agreement shall be in writing and shall be delivered
personally, by courier service providing a delivery receipt or by registered
or certified U.S. mail, postage prepaid, to the other party at the address
set forth below or at such other address as the party may designate by
written notice to the other party:
If to KCSI:
Kansas City Southern Industries, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Senior Vice President and General Counsel
If to Xxxxxxxx:
Xxxxxxxx Financial, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: President
Section 8.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri, without
regard to its principles of conflicts of laws.
Section 8.3 LIMITATION ON WAIVERS. The provisions of this Agreement
may be waived only if the waiver is in writing and signed by the party making
the waiver. No delay or omission in exercising any right under this
Agreement will operate as a waiver of the right on any further occasion. No
waiver of any particular provisions of this Agreement will be treated as a
waiver of any other provision, and no waiver of any rights will be deemed a
continuing waiver of the same right with respect to subsequent occurrences
that give rise to it. All rights given by this Agreement are cumulative to
other rights provided for in this Agreement and to any other rights available
under applicable law.
Section 8.4 COMPLETE AGREEMENT. This Agreement supersedes all other
prior negotiations, agreements and understandings between the parties with
respect to the subject matter hereof, including tax allocation agreements
between or among KCSI and any members of the KCSI Group or the Xxxxxxxx Group
where the terms of such tax allocation agreements conflict with the terms of
this Agreement, except that KCSI and Xxxxxxxx acknowledge that (i) paragraph
3 of the Intercompany Agreement provides a supplemental position with respect
to the Janus Agreement and (ii) paragraph 13 of the Intercompany Agreement
regarding mediation and arbitration of disputes shall also apply to this
Agreement.
Section 8.5 TERM. This Agreement shall commence on the date shown on
page 1 hereof and shall continue in effect until otherwise agreed to in
writing by KCSI and Xxxxxxxx or their successors.
Section 8.6 SUCCESSORS AND ASSIGNMENT. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. KCSI and Xxxxxxxx hereby guarantee the
performance of actions, agreements and obligations contained in this
Agreement of each member of the KCSI Group and the Xxxxxxxx Group,
respectively. Neither KCSI nor Xxxxxxxx shall assign any of their rights or
delegate any of their duties under this Agreement without the prior written
consent of the other party, which consent shall not be unreasonably withheld.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
KANSAS CITY SOUTHERN INDUSTRIES, INC.
By: /s/ X. X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
XXXXXXXX FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman, President and
Chief Executive Officer
