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EXHIBIT 11
AMENDED AND RESTATED TAX INDEMNITY AGREEMENT
AMENDED AND RESTATED TAX INDEMNITY AGREEMENT (the "Agreement") dated
as of November 3, 1997 by and among Xxxxxxxxxxx Group, Inc., a Delaware
corporation ("Opgroup"), CIBC Wood Gundy Securities Corp., a New York
corporation ("CIBC"), Thomson Advisory Group Inc., a Delaware corporation
("TAG") and PIMCO Advisors L.P., a Delaware limited partnership ("PIMCO LP").
WITNESSETH
WHEREAS, Opgroup, Oppenheimer Equities, Inc., a Delaware corporation
and an indirect wholly-owned subsidiary of Opgroup ("Equities"), and CIBC have
entered into a Stock Acquisition Agreement, dated as of July 22, 1997, as
amended by Amendment No. 1 to the Stock Acquisition Agreement, dated as of
November 3, 1997 (the "Acquisition Agreement"), providing for the acquisition of
all of the stock of Xxxxxxxxxxx Holdings Corp., a Delaware corporation and an
indirect wholly-owned subsidiary of Opgroup ("Holdings"), by CIBC from Equities
(the "Acquisition");
WHEREAS, Opgroup, Oppenheimer Financial Corp., a Delaware
corporation and a wholly-owned subsidiary of Opgroup ("Opfin"), PIMCO LP and
PIMCO Advisors Transitory Merger LLC, a Delaware limited liability company and a
wholly-owned subsidiary of PIMCO LP ("PATM"), have entered into an Agreement and
Plan of Merger, dated as of November 4, 1997 (the "Merger Agreement"), providing
for the merger of PATM with and into Opgroup (the "Merger");
WHEREAS, it is contemplated that the Merger will occur at least one
day after the consummation of the Acquisition;
WHEREAS, the parties hereto entered into a Tax Indemnity Agreement
dated as of July 22, 1997 (the "Original Agreement") to provide for the payment
of tax liabilities and entitlement to refunds thereof, allocate responsibility
for, and cooperation in, the filing of tax returns and provide for certain other
matters relating to Taxes (as defined herein) of Opgroup and its subsidiaries;
and
WHEREAS, the parties hereto wish to amend and restate the Original
Agreement to reflect the Acquisition Agreement and the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
undertakings contained herein, the parties agree as follows:
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1. DEFINITIONS.
(a) General. For purposes of this Agreement, the following terms
shall have the meanings set forth below:
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"Acquisition" shall have the meaning set forth in the recitals to
this Agreement.
Acquisition Agreement" shall have the meaning set forth in the
recitals to this Agreement.
"Acquisition Date" shall mean the date on which the Acquisition
occurs.
"Authorized Representative" shall mean the person or persons
appointed by Opgroup prior to the Merger to so serve hereunder and any
successor(s) who shall be appointed by the Managing Trustees.
"CIBC" shall have the meaning set forth in the preamble to this
Agreement and shall include any successor thereto.
"CIBC Post-acquisition Group" shall mean the affiliated group of
corporations, within the meaning of Section 1504(a) of the Code, which includes
CIBC from and after the Acquisition Date, and any member of such group, and
shall include the corporations (as constituted for state law purposes) which
comprised the Holdings Subgroup.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Combined Return" shall mean a consolidated, combined or unitary
income Tax Return that includes one or more members of the Opgroup Subgroup and
one or more members of the Holdings Subgroup.
"Effective Time" shall have the meaning ascribed to such term in the
Merger Agreement.
"Equities" shall have the meaning set forth in the recitals to this
Agreement.
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"Excluded Affiliate" shall have the meaning ascribed to such term in
the Acquisition Agreement.
"Excluded Liability" shall have the meaning ascribed to such term in
the Acquisition Agreement.
"Foreign Subsidiary" shall mean, with respect to any Person, (i)
each corporation, partnership, joint venture or other legal entity, in each case
organized in a jurisdiction other than the U.S. or any subdivision thereof, of
which such Person owns, either directly or indirectly, 50% or more of the stock
or other equity interests the holders of which are generally entitled to vote
for the election of the board of directors or similar governing body of such
corporation, partnership, joint venture or other legal entity and (ii) each
partnership organized in a jurisdiction other than the U.S. or any subdivision
thereof in which such Person or another Subsidiary of such Person is the general
partner or otherwise controls such partnership.
"Good Faith Estimate" shall have the meaning set forth in Section
3(e)(2).
"Governmental Authority" shall have the meaning ascribed to such
term in the Merger Agreement.
"Holdback Amount" shall have the meaning ascribed to such term in
the Acquisition Agreement.
"Holdings" shall have the meaning set forth in the recitals to this
Agreement.
"Holdings Good Faith Estimate" shall have the meaning set forth in
Section 3(e)(2).
"Holdings Tax Payment Subaccount" shall have the meaning set forth
in Section 3(e)(3)(i) hereof.
"Holdings Subgroup" shall mean each member of the Opgroup
Consolidated Group that would have been a member of an "affiliated group" within
the meaning of Section 1504(a) of the Code, of which Holdings was the common
parent, if (i) before the Acquisition Date, no corporation owned stock of
Holdings that met the requirements of Section 1504(a)(2) of the Code, and (ii)
Holdings had no direct or
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indirect subsidiaries that were not its direct or indirect subsidiaries as of
the date of the Acquisition Agreement.
"Holdings Subgroup Tax Amount" shall have the meaning set forth in
Section 3(d)(1) hereof.
"Indemnification Amount" shall have the meaning set forth in Section
4(c) hereof.
"Indemnified Party" shall mean any Person which is seeking
indemnification from an Indemnifying Party pursuant to the provisions of this
Agreement.
"Indemnifying Party" shall mean any party hereto from which an
Indemnified Party is seeking indemnification pursuant to the provisions of this
Agreement.
"Indemnity Trust" shall have the meaning ascribed to such term in
the Merger Agreement.
"Independent Accounting Firm" shall mean a nationally recognized
independent accounting firm, jointly selected by the Managing Trustees and OGI
and/or CIBC; or, if the parties cannot agree on such accounting firm, the
accounting firm selected as follows: the Managing Trustees and OGI and/or CIBC
shall submit the name of a nationally recognized independent accounting firm
that has not provided, in the two years prior to the date the name of such firm
is submitted for selection pursuant to the terms hereof, professional
Tax-related services worth more than $100,000 to any of Opgroup, PIMCO LP, CIBC
or their respective affiliates, and the "Independent Accounting Firm" shall mean
the firm selected by lot from these two or three firms.
"Losses" shall mean any and all claims, losses, liabilities, costs,
penalties, fines and expenses (including reasonable expenses for attorneys,
accountants, consultants and experts), damages, obligations to third parties
(including for the payment of Taxes), expenditures, proceedings, judgments,
awards or demands that are imposed upon or otherwise incurred, suffered or
sustained by the relevant party.
"Managing Trustees" shall mean the trustees of the Seller Trust and
the Indemnity Trust.
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"Merger" shall have the meaning set forth in the recitals to this
Agreement.
"Merger Agreement" shall have the meaning set forth in the recitals
to this Agreement.
"Merger Date" shall mean the date on which the Merger occurs.
"OGI" shall mean Opgroup after the Merger and shall include any
successor thereto.
"OGI Post-Merger Group" shall mean the affiliated group of
corporations, within the meaning of Section 1504(a) of the Code, of which OGI is
the common parent from and after the Effective Time, and any member of such
group, and shall include the corporations which comprised the Opgroup Subgroup.
"OGI Post-Merger Tax Amount" shall have the meaning set forth in
Section 3(b)(3) hereof.
"Opcap" shall mean Oppenheimer Capital, a Delaware partnership.
"Opcap LP" shall mean Xxxxxxxxxxx Capital, L.P., a Delaware limited
partnership.
"0pfin" shall have the meaning set forth in the recitals to this
Agreement.
"Opgroup" shall have the meaning set forth in the preamble to this
Agreement.
"Opgroup Consolidated Group" shall mean the affiliated group of
corporations, within the meaning of Section 1504(a) of the Code, of which
Opgroup is the common parent, and any member of such group.
"Opgroup Good Faith Estimate" shall have the meaning set forth in
Section 3(e)(2).
"Opgroup Subgroup" shall mean Opgroup, Opfin, Equities and Value
Advisors and each other member of the Opgroup Consolidated Group that is not a
member of the Holdings Subgroup.
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"Opgroup Subgroup Tax Amount" shall have the meaning set forth in
Section 3(d)(2) hereof.
"Opgroup Tax Payment Subaccount" shall have the meaning set forth in
Section 3(e)(3)(ii) hereof.
"Overpayment Rate" shall mean the annual rate of interest specified
in Section 6621(a)(1) of the Code (or similar provision of state, local or
foreign tax law, as applicable) for overpayments of Tax.
"Person" shall mean and include any individual, partnership, joint
venture, corporation, association, joint stock company, trust, unincorporated
organization or similar entity.
"PIMCO LP" shall have the meaning set forth in the preamble to this
Agreement and shall include any successor thereto.
"Post-Acquisition Taxable Period" shall mean a taxable period that,
to the extent it relates to a member of the Holdings Subgroup, begins after the
Acquisition Date.
"Post-Merger Taxable Period" shall mean a taxable period that, to
the extent it relates to a member of the Opgroup Subgroup, begins after the
Merger Date.
"Pre-Acquisition Taxable Period" shall mean a taxable period that,
to the extent it relates to a member of the Holdings Subgroup, ends on or before
the Acquisition Date.
"Pre-Merger Taxable Period" shall mean a taxable period that, to the
extent it relates to a member of the Opgroup Subgroup, ends on or before the
Merger Date.
"Present Value Benefit" shall mean the present value (based on a
discount rate equal to the short-term applicable federal rate as determined
under Section 1274(d) of the Code at the time of determination, and assuming
that the Indemnified Party will be liable for Taxes at all relevant times at the
maximum marginal rates) of any income tax benefit; provided, however, that the
tax rates applicable to a partnership shall be deemed to be those applicable to
a Subchapter C corporation. For this purpose, an income tax benefit shall
include depreciation and amortization deductions attributable to an increase in
tax basis as well as a tax deduction (to the extent available
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for a prior or subsequent taxable year), whether or not such benefit results in
an actual receipt of a Refund.
"Proceeding" shall mean any audit or other examination, or any
judicial or administrative proceeding, relating to liability for or refunds or
adjustments with respect to Taxes.
"Refund" shall mean any reduction in liability for Taxes, including
by means of a credit, offset or otherwise against a current Tax Liability or one
that is agreed to or conceded by a taxpayer in a Proceeding or by means of a
refund of a prior Tax Liability.
"Represented Party" shall have the meaning set forth in Section 8(d)
hereof.
"Section 338(h)(10) Elections" shall have the meaning ascribed to
such term in the Acquisition Agreement.
"Section 381 Attribute" shall have the meaning set forth in Section
3(b)(3)(i) hereof.
"Seller Trust" shall have the meaning ascribed to such term in the
Acquisition Agreement.
"Straddle Period" shall mean a taxable period that, to the extent it
relates to a member of the Holdings Subgroup, includes, but does not end on, the
Acquisition Date and, to the extent it relates to a member of the Opgroup
Subgroup, includes, but does not end on, the Merger Date.
"Surviving Corporation" shall have the meaning ascribed to such term
in the Merger Agreement.
"Tax" or "Taxes" shall mean all taxes, charges, fees, imposts,
levies or other assessments, including, without limitation, all net income,
gross receipts, capital, sales, use, gains, ad valorem, value added, transfer,
franchise, profits, inventory, goods and services, capital stock, license,
withholding, payroll, employment, social security, unemployment, disability,
excise, severance, stamp, documentary stamp, occupation, property, mortgage
recording and estimated taxes, together with any interest, penalties, or
additions thereto imposed by any governmental taxing authority (domestic or
foreign).
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"Tax Allocation Agreement" shall mean the Second Amended and
Restated Federal Income Tax Allocation Agreement, dated June 10, 1988, by and
among Opgroup and the corporations listed on Exhibit A thereto, as amended.
"Tax Liabilities" shall mean all liabilities for Taxes.
"Tax Payment Account" shall mean the bank account established
pursuant to Section 2.3 of the Acquisition Agreement.
"Tax Payment Deposit Amount" shall have the meaning set forth in
Section 3(e)(2).
"Tax Payment Subaccount" shall mean the Holdings Tax Payment
Subaccount, the Opgroup Tax Payment Subaccount, or both of them, as the context
requires.
"Tax Return" shall mean all reports and returns required to be filed
with respect to Taxes.
"Tentative Calculations" shall have the meaning set forth in Section
3(e)(1).
"Tower A Associates" shall have the meaning ascribed to such term in
the Acquisition Agreement.
"U.S." shall mean the United States of America.
"Value Advisors" shall mean Value Advisors LLC, a Delaware limited
liability company.
(b) Other Definitional Provisions.
(1) Any terms used but not defined in this Agreement shall
have the meanings ascribed thereto in the Merger Agreement and/or the
Acquisition Agreement.
(2) The words "hereof", "herein", and "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
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(3) The terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
2. CERTAIN OPERATING CONVENTIONS AND PROCEDURES.
(a) Termination of Taxable Years. For U.S. federal income Tax
purposes, (i) the taxable year of each member of the Holdings Subgroup shall end
as of the close of the Acquisition Date, but (ii) the taxable year of each
member of the Opgroup Subgroup shall not end as of the close of the Merger Date.
(b) Allocation of Straddle Period Tax Liability and Procedures. The
allocation of any Tax Liability between the portion of any Straddle Period
ending on the Acquisition Date or the Merger Date, as the case may be, and the
portion of such Straddle Period after such date shall be made by means of a
closing of the books and records of the members of the Holdings Subgroup as of
the close of the Acquisition Date and/or the Opgroup Subgroup as of the close of
the Merger Date, as the case may be, in each case as if a taxable period ended
as of the close of such date; provided, however, that exemptions, allowances or
deductions that are calculated on an annual basis (including, but not limited
to, depreciation and amortization deductions) shall be allocated between the
period ending on such date and the period after such date in the proportion
which the number of days in each such period bears to the total number of days
in the Straddle Period.
(c) Allocation of Income from Flowthrough Entities.
(1) CIBC and the Authorized Representative shall take all
actions necessary to allocate items of income, gain, loss, deduction and credit
of any partnership or "flowthrough" entity, in which any member of the Holdings
Subgroup owns an equity interest immediately after the Acquisition for the
taxable period that includes the Acquisition Date, between the Holdings Subgroup
and the CIBC Post-Acquisition Group as if the taxable period of such flowthrough
entities ended as of the close of the Acquisition Date. As promptly as possible
after the end of the fiscal quarter during which the Acquisition occurs, CIBC
shall cause any such partnership or flowthrough entity to deliver to the
Authorized Representative a pro forma Schedule K-1 showing the allocable shares
of partnership items attributable to the equity interests held by any members of
the Holdings Subgroup for the portion of the taxable period ended as of the
close of the Acquisition Date. The Authorized Representative shall have the
right to review and approve such Schedules K-1 (and any amendments thereto),
which approval shall not unreasonably be withheld.
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(2) OGI and the Authorized Representative shall take all
actions necessary to allocate items of income, gain, loss, deduction and credit
of Opcap and Opcap LP (and any other partnership or "flowthrough" entity in
which any member of the Opgroup Subgroup owns an equity interest immediately
prior to the Merger) for the taxable period that includes the Merger Date
between the Opgroup Subgroup and the OGI Post-Merger Group as if the taxable
period of such flowthrough entities ended as of the close of the Merger Date. As
promptly as possible after the end of the fiscal quarter during which the Merger
occurs, OGI shall cause both Opcap and Opcap LP (and any other such partnership
or flowthrough entity) to deliver to the Authorized Representative a pro forma
Schedule K-1 showing the allowable shares of partnership items attributable to
the equity interests held by any members of the Opgroup Subgroup for the portion
of the taxable period ended as of the close of the Merger Date. The Authorized
Representative shall have the right to review and approve such Schedules K-1
(and any amendments thereto), which approval shall not unreasonably be withheld.
(d) The Authorized Representative.
(1) Prior to the Acquisition Date, Opgroup shall appoint one or
more individuals to serve as the Authorized Representative hereunder. Each of
the parties hereto shall take all actions necessary (including, without
limitation, those set forth in Section 8(d) hereof) to provide the Authorized
Representative with the requisite authority to carry out each of its prescribed
functions hereunder.
(2) CIBC and PIMCO LP shall each permit the Authorized
Representative, if otherwise serving as an employee of it or of one of its
affiliates, to serve as the Authorized Representative hereunder and to utilize
the services of those individuals otherwise reporting to the Authorized
Representative. In addition, the Authorized Representative shall be authorized
to retain the services of such outside accountants and/or attorneys to assist in
the preparation of the requisite Tax Returns and in the handling of any Tax
Proceedings and, except or otherwise provided in Section 8 hereof, to pay
reasonable fees and other charges for such services.
3. FILING OF TAX RETURNS; PAYMENT OF TAXES.
(a) Tax Returns Required to Be Filed Prior to Acquisition Date.
Opgroup shall prepare and file or cause to be filed all Tax Returns of Opgroup,
any member of the Opgroup Consolidated Group and any Foreign Subsidiary of any
member of the Opgroup Consolidated Group required to be filed (after giving
effect to any valid extension of time in which to make such filings) prior to
the Acquisition Date
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and shall pay or cause to be paid all Taxes shown to be due and payable on such
Tax Returns.
(b) Tax Returns for Pre-Acquisition and/or Pre-Merger Taxable
Periods, Combined Returns.
(1) Subject to the joint participation requirements of Section
3(b)(3) hereof, the Authorized Representative shall prepare or cause to be
prepared, for Pre-Acquisition Taxable Periods and for Pre-Merger Taxable
Periods, (A) all required Combined Returns, (B) all other required consolidated,
combined or unitary Tax Returns that include one or more members of the Opgroup
Consolidated Group and (C) all other Tax Returns required to be filed on a
separate return basis by any member of the Opgroup Consolidated Group or any
Foreign Subsidiary thereof, in each case, which Tax Returns are not required to
be (after giving effect to any valid extensions), and are not, filed on or prior
to the Acquisition Date or the Merger Date, as the case may be. The books and
records of Opgroup and each of its Subsidiaries will be maintained, and the
federal, state and other income Tax Returns of each such corporation will be
filed, so as to properly reflect the operations of each such corporation through
the end of the Acquisition Date and/or the Merger Date.
(2) Subject to the joint participation requirements of Section
3(b)(3) hereof, the Authorized Representative shall prepare or cause to be
prepared all required Combined Returns which cover a Straddle Period. The books
and records of Opgroup and each of its Subsidiaries will be maintained, and the
federal, state and other income Tax Returns of each such corporation will be
filed, so as to properly reflect the operations of each such corporation through
the end of the relevant Straddle Period.
(3) (i) To the extent any Pre-Acquisition Taxable Period or
Pre-Merger Taxable Period is included on a Combined Return that is required to
be filed after the Acquisition Date and whether or not such Combined Return
covers a taxable period that is a Straddle Period, the Authorized Representative
shall permit each of CIBC and OGI, if it elects to do so, to jointly participate
with the Authorized Representative in the preparation of such Combined Return.
To the extent any Tax Return for a Pre-Acquisition Taxable Period or Pre-Merger
Taxable Period that is not a Combined Return is required to be filed after the
Acquisition Date (A) by Holdings and/or any member of the Holdings Subgroup, the
Authorized Representative shall permit CIBC, if it so elects to do so or (B) by
Opgroup and/or any member of the Opgroup Subgroup, the Authorized Representative
shall permit OGI, if it elects to do so, to jointly participate with the
Authorized Representative in the preparation of such
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Tax Return. Such joint participation shall be conducted in good faith and shall
include, but not be limited to, participation by CIBC and/or OGI, as the case
may be, in all material aspects of the Tax Return preparation; provided,
however, that CIBC or OGI, as the case may be, shall have primary responsibility
for that portion of any Tax Return that covers the post-Acquisition or
post-Merger portion of any Straddle Period except that, if an item reported on
the post-Merger portion of a Combined Return for a Straddle Period would have
been reported on a Tax Return of a member of the Holdings Subgroup, had such
member remained a member of the Opgroup Consolidated Group, but is instead
reported by a member of the OGI Post-Merger Group by reason of Section 381 of
the Code or similar provisions of state or local law (a "Section 381
attribute"), CIBC shall have primary responsibility for the preparation of that
portion of such Tax Return with respect to such item; and provided further,
however, that the Authorized Representative shall have responsibility for
overall coordination of such joint participation process. In each case, CIBC
and/or OGI also shall be provided with a copy of each such Tax Return at least
20 days before the due date for its filing. OGI shall also be provided
concurrently with each Combined Return a statement setting forth in reasonable
detail a calculation of the portion, if any, of the Taxes shown to be due on
such Combined Return which is attributable to any member of the OGI Post-Merger
Group after the Merger Date pursuant to Section 2(b) hereof (the "OGI
Post-Merger Tax Amount").
(ii) Each of CIBC and OGI shall have the right to
consult with the Authorized Representative regarding any calculations or
positions taken on the Tax Returns of which they were entitled to participate in
the preparation and, irrespective of whether such joint participation was
elected, to review and approve (such approval not to be unreasonably withheld)
each such Tax Return for 10 business days following its receipt thereof;
provided, however, that, except as provided in subsection (iii) below, CIBC or
OGI shall be deemed to have unreasonably withheld its approval of such Tax
Return unless, as the basis for withholding such approval, the position deals
with an issue arising solely in the post-Acquisition or post-Merger portion of
any Straddle Period included on a Combined Return (in which event, assuming the
existence of a reasonable basis (within the meaning of Section 6662 of the Code)
therefor, CIBC or OGI, as the case may be, may control the decision as to the
appropriate position with respect thereto) or CIBC or OGI demonstrates, by
providing to the Authorized Representative an opinion of counsel reasonably
acceptable to the Authorized Representative or of a "Big Six" accounting firm to
such effect, that substantial authority (within the meaning of Section 6662 of
the Code) does not exist for a position taken on such Tax Return. The failure of
CIBC or OGI to propose any changes to any such Tax Return within such 10
business day period shall be deemed to constitute CIBC's or OGI's approval
thereof.
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(iii) If, however, CIBC and/or OGI propose that the
Authorized Representative change a proposed position on a Combined Return or
another Tax Return that reflects a Tax Liability of at least $100,000, in each
case that is required to be filed after the Acquisition Date, and the Authorized
Representative cannot demonstrate, by providing to CIBC and/or OGI, as the case
may be, an opinion of counsel reasonably acceptable to CIBC and/or OGI, as the
case may be, or of a "Big Six" accounting firm to such effect, that the
Authorized Representative's proposed position is more likely than not to be
sustained if challenged by the relevant Governmental Authority, if the
Authorized Representative does not change such Tax Return to reflect such
proposed change, and if the issue does not involve a matter which otherwise is
an Excluded Liability, an amount of cash shall be retained in the Tax Payment
Account equal to the amount by which the Tax Liability with respect to all such
Tax Returns, if prepared in a manner that reflected such proposed changes on all
such Tax Returns, would have exceeded by more than $1 million, in the aggregate,
the liability reflected on such Tax Returns as finally filed by the Authorized
Representative. Such amounts shall be distributed from time to time to the
Seller Trust after the expiration of the statute of limitations for the taxable
periods with respect to which the Tax Returns giving rise to the retention of
such amounts relate.
(iv) Subject to Section 3(e) hereof, the Authorized
Representative shall (A) file or cause to be filed all Tax Returns to which this
Section 3(b) applies and (B) shall pay or cause to be paid from the Tax Payment
Account all Taxes shown on such Tax Returns to be due and payable, including the
portion of such Taxes attributable to the OGI Post-Merger Tax Amount (which
amount shall be timely deposited into the Tax Payment Account by OGI).
(c) Tax Returns for Post-Acquisition and Post-Merger Taxable
Periods.
(1) CIBC shall be responsible for (i) preparing and filing or
causing to be prepared and filed all Tax Returns required to be filed by any
member of the Holdings Subgroup or any Foreign Subsidiary thereof for any
Post-Acquisition Taxable Period and (ii) paying any Tax Liability due with
respect to such Tax Returns.
(2) OGI shall be responsible for (i) preparing and filing or
causing to be prepared and filed all Tax Returns required to be filed by any
member of the Opgroup, Subgroup or any Foreign Subsidiary thereof for any
Post-Merger Taxable Period and (ii) paying any Tax Liability due with respect to
such Tax Returns.
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(d) Non-Combined Tax Returns for Straddle Periods.
(1) The Authorized Representative shall prepare, and CIBC
shall file or cause to be filed (except to the extent provided in Section
3(d)(1)(i) below, in the form and manner so prepared by the Authorized
Representative), all Tax Returns (other than a Combined Return) of or which
include any member of the Holdings Subgroup or any Foreign Subsidiary thereof
for a Straddle Period. The Authorized Representative shall provide CIBC with
each such Tax Return at least 20 days prior to the due date for filing thereof,
together with a statement setting forth in reasonable detail a calculation of
the portion of the Taxes shown to be due on such Tax Return which is allocable
to the Holdings Subgroup through the Acquisition Date pursuant to Section 2(b)
hereof (the "Holdings Subgroup Tax Amount").
(i) CIBC shall have the right to review and approve
(which approval shall not be unreasonably withheld) each such Tax Return for 10
days following receipt thereof; provided, however, that CIBC shall be deemed to
have unreasonably withheld its approval of such Tax Return unless, as the basis
for withholding such approval, the position deals with an issue arising solely
in the post-Acquisition portion of the Straddle Period (in which event, assuming
the existence of a reasonable basis (within the meaning of Section 6662 of the
Code) therefor, CIBC may control the decision as to the appropriate position
with respect thereto) or CIBC demonstrates, by providing to the Authorized
Representative an opinion of counsel reasonably acceptable to the Authorized
Representative or of a "Big Six" accounting firm to such effect, that
substantial authority (within the meaning of Section 6662 of the Code) does not
exist for a position taken on such Tax Return. The failure of CIBC to propose
any changes to any such Tax Return within such 10-day period shall be deemed to
constitute CIBC's approval thereof. CIBC and the Authorized Representative shall
attempt in good faith mutually to resolve any disagreements regarding such Tax
Returns prior to the due date for filing thereof; provided, however, that the
failure to resolve all disagreements prior to such date shall not relieve CIBC
of its obligation to file (or cause to be filed) any such Tax Return in the form
and manner in which it was prepared by the Authorized Representative. Any
disagreements regarding such Tax Returns which are not resolved prior to the
filing thereof shall be promptly resolved pursuant to Section 7 hereof.
(ii) CIBC shall pay or cause to be paid the Tax
Liability due with respect to any Straddle Period Tax Return of a member of the
Holdings Subgroup; provided, however, that, no later than 5 business days prior
to the due date for filing any such Tax Return (taking into account extensions),
the Authorized
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Representative, subject to Section 3(e) hereof, shall cause a check to be drawn
on the Tax Payment Account to the extent of the Holdings Subgroup Tax Amount.
(2) The Authorized Representative shall prepare, and OGI shall
file or cause to be filed (except to the extent provided in Section 3(d)(2)(i)
below, in the form and manner so prepared by the Authorized Representative), all
Tax Returns (other than a Combined Return) of or which include any member of the
Opgroup Subgroup or any Foreign Subsidiary thereof for a Straddle Period. The
Authorized Representative shall provide OGI with each such Tax Return at least
20 days prior to the due date for filing thereof, together with a statement
setting forth in reasonable detail a calculation of the portion of the Taxes
shown to be due on such Tax Return which is allocable to Opgroup Subgroup
through the Merger Date pursuant to Section 2(b) hereof (the "Opgroup Subgroup
Tax Amount").
(i) OGI shall have the right to review and approve
(which approval shall not be unreasonably withheld) each such Tax Return for 10
days following receipt thereof; provided, however, that OGI shall be deemed to
have unreasonably withheld its approval of such Tax Return unless, as the basis
for withholding such approval, the position deals with an issue arising solely
in the post-Merger portion of the Straddle Period (in which event, assuming the
existence of a reasonable basis (within the meaning of Section 6662 of the Code)
therefor, OGI may control the decision as to the appropriate position with
respect thereto) or OGI demonstrates, by providing to the Authorized
Representative an opinion of counsel reasonably acceptable to the Authorized
Representative or of a "Big Six" accounting firm to such effect, that
substantial authority (within the meaning of Section 6662 of the Code) does not
exist for a position taken on such Tax Return. The failure of OGI to propose any
changes to any such Tax Return within such 10-day period shall be deemed to
constitute OGI's approval thereof. OGI and the Authorized Representative shall
attempt in good faith mutually to resolve any disagreements regarding such Tax
Returns prior to the due date for filing thereof; provided, however, that the
failure to resolve all disagreements prior to such date shall not relieve OGI of
its obligation to file (or cause to be filed) any such Tax Return in the form
and manner in which it was prepared by the Authorized Representative. Any
disagreements regarding such Tax Returns which are not resolved prior to the
filing thereof shall be promptly resolved pursuant to Section 7 hereof.
(ii) OGI shall pay or cause to be paid the Tax Liability
due with respect to any Straddle Period Tax Return of a member of the Opgroup
Subgroup; provided, however, that, no later than 5 business days prior to the
due date for filing any such Tax Return (taking into account extensions), the
Authorized
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Payment Subaccount shall be equal to Holdings Good Faith Estimate multiplied by
105%.
(ii) The "Opgroup Tax Payment Subaccount" shall be
established in favor of OGI and the Seller Trust. The amount of the Opgroup Tax
Payment Subaccount shall be equal to the Opgroup Good Faith Estimate multiplied
by 105%.
(4) Subject to Section 3(e)(6) hereof, amounts in the
respective Tax Payment Subaccounts shall be free from the claims of CIBC (in the
case of the Opgroup Tax Payment Subaccount) and OGI (in the case of the Holdings
Tax Payment Subaccount) and shall be held for the purposes set forth in this
Section 3(e) and Section 2.3 of the Acquisition Agreement.
(5) Except with respect to an Excluded Liability, CIBC shall
have the authority to make payments from the Holdings Subaccount to Governmental
Authorities on behalf of the Holdings Subgroup and OGI shall have authority to
make payments from the Opgroup Subaccount to Governmental Authorities on behalf
of the Opgroup Subgroup, after one day's notice to the Authorized
Representative, if CIBC or OGI, as the case may be, reasonably believes that
such payment is required to avoid incurring interest, penalties or other
additional Tax Liabilities with respect to any taxable period of the Opgroup
Consolidated Group that includes the Acquisition Date or any taxable period
ending before the Acquisition Date for which Tax Returns are not filed until
after the Acquisition Date.
(6) Notwithstanding anything in Section 3(e)(4) hereof or
Section 2.3(b) of the Acquisition Agreement to the contrary, after (i) filing of
all Tax Returns that the Authorized Representative believes are required to be
filed with respect to such Tax Payment Subaccount (with the good faith
concurrence of OGI or CIBC, as the case may be), (ii) payment of Taxes with
respect to which amounts in the Tax Payment Subaccount were deposited and (iii)
the payment pursuant to the proviso in Section 2.3(b) of the Acquisition
Agreement, amounts remaining in a Tax Payment Subaccount shall be transferred
(x) by CIBC, with respect to any amounts remaining in the Holdings Tax Payment
Subaccount, to the Opgroup Tax Payment Subaccount, or (y) by OGI, with respect
to any amounts remaining in the Opgroup Tax Payment Subaccount, to the Holdings
Tax Payment Subaccount; provided, however, that, if any amounts have been
released pursuant to this Section 3(e)(6) to a Tax Payment Subaccount, any
amounts remaining in the recipient Tax Payment Subaccount shall be distributed
directly to the Seller Trust after the filing of all Tax Returns that the
Authorized Representative believes are required to be filed with respect to such
Tax
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Payment Subaccount (with the good faith concurrence of OGI or CIBC, as the case
may be), the payment of Taxes with respect to which amounts were allocated to
such Tax Payment Subaccount and the making of the payment described in clause
(iii) above in this Section 3(e)(6); and provided further, however, that, after
the filing of all federal, state and local income and franchise Tax Returns and
other material Tax Returns, CIBC and OGI may jointly authorize interim partial
distributions to the Seller Trust from the two Tax Payment Subaccounts.
4. RESPONSIBILITY AND INDEMNIFICATION FOR TAXES.
(a) Responsibility of and Indemnification by CIBC. Except as
otherwise provided in Sections 3 and 4(b) hereof, CIBC shall be responsible for,
and, except as otherwise provided in Section 4(b) hereof, CIBC shall indemnify
and hold harmless OGI and its shareholders, directors, officers, employees,
affiliates, agents and successors from and against all Losses of any member of
the OGI Post-Merger Group arising from, any and all Taxes attributable to any
member of the Holdings Subgroup for any Pre-Acquisition Taxable Period,
Post-Acquisition Taxable Period, or Straddle Period.
(b) Responsibility of and Indemnification by PIMCO LP. Except as
otherwise provided in Section 3 hereof, PIMCO LP shall be responsible for, and
PIMCO LP shall indemnify and hold harmless CIBC and its shareholders, directors,
officers, employees, affiliates, agents and successors from and against all
Losses of any member of the CIBC Post-Acquisition Group arising from, any and
all Taxes (1) attributable to any member of the Opgroup Subgroup for any
Pre-Merger Taxable Period, Post-Merger Taxable Period, or Straddle Period
(including any disallowance of deductions claimed with respect to the interest
of Opfin in Tower A Associates in Pre-Merger Taxable Periods or Straddle
Periods); or (2) attributable to any member of the Holdings Subgroup by reason
of an increase in the grossed-up purchase price, as described in Treas. Reg.
Section 1.338(h)(10)-l(f)(2)(ii)(A), for the Section 338(h)(10) Elections over
that reported on the Tax Returns filed in accordance with Section 3(b)(3)
hereof, and CIBC shall have no obligations to OGI or PIMCO LP pursuant to
Section 4(a) with respect to such Losses. Any indemnification payments by PIMCO
LP under this Section 4(b) shall be considered to have been made on behalf of,
and in lieu of an actual contribution of funds to, OGI.
(c) Procedure for Payment.
(1) Subject to the provisions of Sections 3 and 8 hereof, to
the extent CIBC or OGI is responsible for a payment of Taxes under Sections 4(a)
or 4(b)
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hereof, respectively, such responsible party shall promptly pay (or cause to be
paid) such Taxes to the appropriate Governmental Authority when due.
(2) If the Indemnifying Party is required to indemnify the
Indemnified Party pursuant to this Section 4, the Indemnified Party shall submit
its calculations, in sufficient detail so as to permit the Indemnifying Party to
understand the computation thereof, of the amount required to be paid pursuant
to this Section 4, which shall be net of the Present Value Benefit realized or
realizable by the Indemnified Party (such net amount being the "Indemnification
Amount"). Subject to the following sentence, the Indemnifying Party shall pay to
the Indemnified Party, no later than 10 days after the Indemnifying Party
receives the Indemnified Party's calculations, the Indemnification Amount. If
the Indemnifying Party disagrees with such calculations, it must notify the
Indemnified Party of its disagreement in writing within 10 days of receiving
such calculations. Any dispute regarding such calculations shall be resolved in
accordance with Section 7 of this Agreement.
(d) Time Limits. Any claim under this Section 4 with respect to a
Tax Liability must be made in accordance with the notification procedures of
Section 8 hereof and no later than thirty (30) days after the expiration of the
applicable statute of limitations for assessment of such Tax Liability.
5. CARRYBACKS AND CARRYOVERS.
(a) In the event that any member of the OGI Post-Merger Group
realizes any loss, deduction, credit or other Tax attribute in any taxable
period (or portion thereof) beginning after the Merger Date, such member may, to
the extent permitted by law, utilize such loss, deduction, credit or other Tax
attribute and obtain any available Refund, including by carrying back such loss,
deduction, credit or Tax attribute to a prior Opgroup Consolidated Group taxable
year; provided, however, that (except as provided in the second proviso in this
sentence), to the extent such carryback is elective, such member of the OGI
Post-Merger Group may only carry back such item with the consent of the
Authorized Representative (which may be withheld in its sole discretion if the
taxable period to which such item may be carried back has not yet been subject
either to audit or to a prior or concurrent mandatory carryback); and provided
further, however, that, if such item is the result of a disallowance of a
Section 381 attribute that was claimed by a member of the OGI Post-Merger Group
for a Straddle Period, such item shall be carried back to prior taxable years of
the Opgroup Consolidated Group or the OGI Post-Merger Group, as the case may be,
to the extent permitted by law, unless CIBC notifies OGI in writing that such
item is not to be so
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carried back. CIBC shall cooperate with OGI in seeking from the appropriate
taxing authority any Refund that reasonably would result therefrom. Except to
the extent that such Refund is the result of a disallowance of a loss,
deduction, credit or other Tax attribute claimed by, or a reduction in an item
of income or gain reported by, a member of the Opgroup Consolidated Group for a
Pre-Acquisition Taxable Period or the pre-Acquisition portion of a Straddle
Period or is attributable to the disallowance of a Section 381 attribute (in any
such event such Refund shall be paid first to CIBC to offset any related
increase in Tax Liabilities borne by CIBC for Pre-Acquisition Taxable Period(s)
or Straddle Period(s) (to the extent not previously indemnified under the
Acquisition Agreement or this Agreement) and second to the Seller Trust), OGI
shall be entitled to any Refund (or other Tax benefit including any interest
thereon received from such taxing authority) realized by a member of the OGI
Post-Merger Group attributable to such loss, deduction, credit or other Tax
attribute.
(b) In the event that any member of the CIBC Post-Acquisition Group
realizes any loss, deduction, credit or other Tax attribute in any taxable
period (or portion thereof) beginning after the Acquisition Date, such member
may, to the extent permitted by law, utilize such loss, deduction, credit or Tax
attribute and obtain any available Refund, including by carrying back such loss,
deduction, credit or other Tax attribute to a prior Opgroup Consolidated Group
taxable year; provided, however, that, to the extent such carryback is elective,
such member of the CIBC Post-Acquisition Group may only carry back such item
with the consent of the Authorized Representative (which may be withheld in its
sole discretion if the taxable period to which such item may be carried back has
not yet been subject either to audit or to a prior or concurrent mandatory
carryback). OGI shall cooperate with CIBC in seeking from the appropriate taxing
authority any Refund that reasonably would result therefrom. Except to the
extent that such Refund is the result of a disallowance of a loss, deduction,
credit or other Tax attribute claimed by, or a reduction in an item of income or
gain reported by, a member of the Opgroup Consolidated Group for a Pre-Merger
Taxable Period or the pre-Merger portion of a Straddle Period (in either which
event such Refund shall be paid first to OGI to offset any related increase in
Tax Liabilities borne by the Opgroup Subgroup for Pre-Merger Taxable Period(s)
or Straddle Period(s) (to the extent not previously indemnified under the Merger
Agreement or this Agreement) and second to the Seller Trust), CIBC shall be
entitled to any Refund (or other Tax benefit including any interest thereon
received from such taxing authority) realized by a member of the CIBC
Post-Acquisition Group attributable to such loss, deduction, credit or other Tax
attribute.
(c) In the event that any Excluded Affiliate realizes any loss,
credit or other Tax attribute in any taxable period (or portion thereof)
beginning after the Merger
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Date, such member may carry back such loss, credit or Tax attribute to a prior
Opgroup Consolidated Group taxable year. CIBC and OGI shall cooperate with the
Authorized Representative in seeking from the appropriate taxing authority any
Refund that reasonably would result from such carryback. The Seller Trust shall
be entitled to any Refund (or other Tax benefit) realized by any Excluded
Affiliate (including any interest thereon received from such taxing authority)
attributable to such carryback.
(d) The OGI Post-Merger Group also shall be entitled to the benefit,
in Post-Merger Taxable Periods, of any net operating loss, capital loss or other
carryforward, unused investment, foreign tax or other credit arising in a
Pre-Merger Taxable Period of the Opgroup Consolidated Group (including from any
member of the Holdings Subgroup); provided, however, that members of the CIBC
Post-Acquisition Group shall have priority with respect to the benefit, in
Post-Acquisition Taxable Periods, of any carryforward which is legally available
from the Holdings Subgroup. OGI or CIBC, as the case may be (the "Recipient"),
shall apply the Present Value Benefit of such carryforward in the following
order of priority: (1) to offset any resulting increase in Tax Liabilities for
Pre-Acquisition or Pre-Merger Taxable Period(s) (to the extent not previously
indemnified under the Acquisition Agreement, the Merger Agreement or this
Agreement), (2) to the Recipient to the extent of any uncompensated Losses for
Pre-Merger or Pre-Acquisition Taxable Periods, (3) to the non-Recipient to the
extent of any uncompensated Losses for Pre-Acquisition or Pre-Merger Taxable
Periods, and (4) to the Seller Trust.
6. COOPERATION; MAINTENANCE AND RETENTION OF RECORDS. CIBC shall, and
shall cause the Members of the CIBC Post-Acquisition Group, OGI shall, and shall
cause the members of the OGI Post-Merger Group, and the Managing Trustees shall,
and shall cause the Authorized Representative, to provide a requesting party
with such assistance and documents as may be reasonably requested by such
requesting party in connection with (i) the preparation of any Tax Return, (ii)
the conduct of any Proceeding, (iii) any matter relating to Taxes of any member
of the Opgroup Consolidated Group, the Opgroup Subgroup, the Holdings Subgroup,
the CIBC Post-Acquisition Group, or the OGI Post-Merger Group and (iv) any
other matter that is a subject of this Agreement, and the requesting party shall
pay any reasonable out-of-pocket expenses incurred by the assisting party in
connection therewith. CIBC, OGI and the Managing Trustees shall retain or cause
to be retained all Tax Returns, schedules and workpapers, and all material
records or other documents relating thereto, until the expiration of the statute
of limitations (including any waivers or extensions thereof) of the taxable
years to which such Tax Returns and other documents relate or until the
expiration of any additional period that any party reasonably requests, in
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writing, with respect to specific material records or documents. A party
intending to destroy any material records or documents shall provide each other
party with reasonable advance notice and the opportunity to copy or take
possession of such records and documents. The parties hereto will notify each
other party in writing of any waivers or extensions of the applicable statute of
limitations that may affect the period for which the foregoing records or other
documents must be retained.
7. DISPUTES. If the parties disagree as to the amount of any payment to be
made under, or any other matter arising out of, this Agreement, the parties
shall attempt in good faith to resolve such dispute, and any agreed upon amount
shall be paid to the appropriate party. If such dispute is not resolved within
15 days, the parties shall jointly retain the Independent Accounting Firm to
resolve the dispute. The fees of the Independent Accounting Firm shall be borne
equally by the parties having the dispute, and the decision of such Independent
Accounting Firm shall be final and binding on all parties involved. Following
the decision of the Independent Accounting Firm, the parties shall each take or
cause to be taken any action that is necessary or appropriate to implement such
decision of the Independent Accounting Firm, including, without limitation, the
prompt payment of underpayments or refund of overpayments, with interest
calculated on such overpayments and underpayments at the Overpayment Rate from
the date such payment was due through the date such underpayment or overpayment
is paid or refunded.
8. PROCEEDINGS.
(a) Notification.
(1) CIBC shall, promptly upon receipt of notice thereof by any
member of the CIBC Post-Acquisition Group, notify the Managing Trustees in
writing of any communication with respect to any pending or threatened
Proceeding in connection with a Tax Liability (or an issue related thereto) of
any Member of the Opgroup Consolidated Group for a Pre-Acquisition Taxable
Period or a Straddle Period. CIBC 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 a member of
the CEBC Post-Acquisition Group.
(2) OGI shall, promptly upon receipt of notice thereof by any
member of the OGI Post-Merger Group, notify the Managing Trustees in writing of
any communication with respect to any pending or threatened Proceeding in
connection with
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a Tax Liability (or an issue related thereto) of any Member of the Opgroup
Consolidated Group for a Pre-Merger Taxable Period or a Straddle Period. OGI
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 a member of the OGI Post-Merger Group.
(3) The Managing Trustees shall, promptly upon receipt of
notice (1) from CIBC, notify OGI in writing of any communication with respect to
any pending or threatened Proceeding in connection with a Tax Liability (or an
issue related thereto) for a member of the Opgroup Subgroup and (2) from OGI,
notify CIBC in writing of any communication with respect to any pending or
threatened proceeding in connection with a Tax Liability (or an issue related
thereto) for any member of the Holdings Subgroup. The Managing Trustees 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.
(b) Pre-Acquisition and Pre-Merger Taxable Periods and Straddle
Periods. The Authorized Representative shall have the primary responsibility to
represent the interests of the members of the Opgroup Consolidated Group, the
Holdings Subgroup, the Opgroup Subgroup and any Foreign Subsidiary thereof in
any Proceeding relating to Pre-Acquisition and/or Pre-Merger Taxable Periods
and/or Straddle Periods and to employ counsel of its choice at its expense;
provided, however, that (i) CIBC and OGI each shall be permitted to participate
(at its own expense) in any such Proceedings and all hearings relating thereto
and the Authorized Representative's counsel shall give due consideration to all
comments and suggestions received from CIBC and OGI; (ii) the Authorized
Representative shall not settle any dispute or tax issue with a taxing authority
without the consent of CIBC or OGI, as the case may be, which consent, in each
case, shall not unreasonably be withheld; and (iii) primary responsibility shall
shift to OGI at such time, if ever, that the asserted Tax Liabilities exceed the
then balance in the Indemnity Trust or to CEBC at such time, if ever, that the
asserted Tax Liabilities exceed the then balance of the Holdback Amount; and
provided further, however, that primary responsibility with respect to any item
shall shift to CEBC or OGI, as the case may be, if they are responsible to the
other under Sections 4(a) or 4(b) but are not entitled to indemnification for
Losses attributable to such item under the Acquisition Agreement or the Merger
Agreement, respectively.
(c) Post-Acquisition and Post-Merger Taxable Periods.
(1) CIBC shall have the sole right to represent the interests
of the CIBC Post-Acquisition Group (or any member thereof) in any Proceeding
relating to a
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Post-Acquisition Taxable Period; provided, however, that the Seller Trust shall
be permitted to participate at its own expense in any such Proceeding; and
provided further, however, that, if CIBC has asserted (or is reasonably likely
to assert) that the Seller Trust may be liable for indemnification under the
Acquisition Agreement, CIBC shall not settle or otherwise resolve any dispute or
tax issue with a taxing authority without the consent of the Seller Trust, which
consent shall not unreasonably be withheld.
(2) OGI and PIMCO LP shall have the sole right to represent the
interests of the OGI Post-Merger Group (or any member thereof) in any Proceeding
relating to a Post-Merger Taxable Period; provided, however, that the Indemnity
Trust shall be permitted to participate at its own expense in any such
Proceeding and provided further, however, that, if OGI has asserted (or is
reasonably likely to assert) that the Indemnity Trust may be liable for
indemnification under the Merger Agreement, OGI and PIMCO LP shall not settle or
otherwise resolve any dispute or tax issue with a taxing authority without the
consent of the Indemnity Trust, which consent shall not unreasonably be
withheld.
(d) Power of Attorney. Each member of the CIBC Post-Acquisition
Group and the OGI Post-Merger Group (each a "Represented Party") shall execute
and deliver to the Authorized Representative any power of attorney requested by
the Authorized Representative in connection with any Proceeding described in
Section 8(b) hereof; provided, however., that such power of attorney is required
to permit the Authorized Representative to conduct such Proceeding; and provided
further, however, that such power of attorney shall not negate any right of a
Represented Party to consent to settlements provided in Section 8(b) hereof or
to otherwise act on its own behalf pursuant to this Agreement.
9. INTEREST; METHOD OF PAYMENT. Any payment required by this Agreement
that is not made on or before the date such payment is required to be made
hereunder shall bear interest after such date at the Overpayment Rate. All
payments made pursuant to this Agreement shall be made in immediately available
funds.
10. COVENANT TO EFFECT SECTION 338(h)(10) ELECTIONS. CIBC, Opgroup, the
Authorized Representative, OGI and PIMCO LP shall take or cause to be taken all
actions required by applicable law to make valid Section 338(h)(10) Elections
with respect to Holdings, Xxxxxxxxxxx & Co., Inc., Advantage Advisers, Inc., to
the extent
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designated by CIBC, any other subsidiary of Holdings, and, to the extent
designated by the Authorized Representative, any Excluded Affiliate.
11. TERMINATION OF PRIOR TAX SHARING AGREEMENTS. This Agreement shall take
effect on the Acquisition Date and shall replace all other agreements, whether
or not written, in respect of any Taxes between or among any members of the
Opgroup Subgroup on the one hand and the Holdings Subgroup on the other,
including the Tax Allocation Agreement; provided, however, that this Agreement
shall not supersede any agreements with respect to Taxes set forth in the
Acquisition Agreement and/or the Merger Agreement. All such replaced agreements
shall be cancelled as of the Acquisition Date to the extent they relate to any
members of the Holdings Subgroup and as of the Merger Date to the extent they
relate to any members of the Opgroup Subgroup, and any rights or obligations of
any members of the Opgroup Subgroup or Holdings Subgroup existing under such
agreements thereby shall be fully and finally settled without any payment by any
party thereto.
12. AMENDMENT. This Agreement may be amended, modified or supplemented
only by a written agreement signed by all of the parties hereto.
13. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without reference to choice
of law principles, including matters of construction, validity and performance.
14. NOTICES. Notices, requests, permissions, waivers, and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if signed by the respective persons giving them (in the case of any
corporation the signature shall be by an officer thereof) and delivered by hand
or by telecopy or on the date of receipt indicated on the return receipt if
mailed (registered or certified, return receipt requested, properly addressed
and postage prepaid):
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If to CIBC, to:
CIBC Wood Gundy Securities Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to OGI or PIMCO LP, to:
PIMCO Advisors L.P.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Managing Trustees, to:
The Indemnity Trust (or The Seller Trust)
World Financial Center
Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
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with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx Xxxx, Esq.
Facsimile: (000) 000-0000
Such names and addresses may be changed by notice given in accordance with this
Section 14.
15. ENTIRE AGREEMENT. Except with respect to a party's indemnification
rights under the Acquisition Agreement or the Merger Agreement, this Agreement
contains the entire understanding of the parties hereto with respect to the
subject matter contained herein, and supersedes and cancels all prior
agreements, negotiations, correspondence, undertakings and communications of the
parties, oral or written, respecting such subject matter.
16. HEADINGS; REFERENCES. The article, section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. All references
herein to "Articles", "Sections" or "Exhibits" shall be deemed to be references
to Articles or Sections hereof or Exhibits hereto unless otherwise indicated.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and each counterpart shall be deemed to be an original, but all of
which shall constitute one and the same original.
18. PARTIES IN INTEREST; ASSIGNMENT; SUCCESSOR. Neither this Agreement nor
any of the rights, interest or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties.
Subject to the preceding sentence, this Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
permitted assigns. Nothing in this Agreement, express or implied, is intended to
confer upon any other Person, other than the Seller Trust and the Indemnity
Trust, any rights or remedies under or by reason of this Agreement.
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19. SEVERABILITY; ENFORCEMENT. The invalidity of any portion hereof shall
not affect the validity, force or effect of the remaining portions hereof. If it
is ever held that any restriction hereunder is too broad to permit enforcement
of such restriction to its fullest extent, each party agrees that a court of
competent jurisdiction may enforce such restriction to the maximum extent
permitted by law, and each party hereby consents and agrees that such scope may
be judicially modified accordingly in any proceeding brought to enforce such
restriction.
20. EFFECTIVE DATE. This Agreement shall become effective upon the
occurrence of the Acquisition Date; provided, however, that it shall terminate
and be null and void and of no force and effect with respect to the rights and
obligations of OGI and PIMCO LP upon any termination of the Merger Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Amended and
Restated Tax Indemnity Agreement to be executed on its behalf by its officers
thereunto duly authorized, all as of the day and year first written above.
XXXXXXXXXXX GROUP, INC.
By: [SIG]
---------------------------------------
By:
Title:
CIBC WOOD GUNDY SECURITIES CORP.
By: [SIG]
---------------------------------------
By:
Title:
PIMCO ADVISORS L.P.
By: [SIG]
---------------------------------------
By:
Title:
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THOMSON ADVISORY GROUP INC.
By: [SIG]
---------------------------------------
By:
Title:
28
