TAX ALLOCATION AGREEMENT
This Tax Allocation Agreement is effective as of February 1,1999 by and
among Xxxxxxx Computer Associates, Inc. ("Xxxxxxx") and e-PROFILE, Inc. (the
"Subsidiary").
BACKGROUND
Xxxxxxx and the Subsidiary have been filing a consolidated federal income
tax return in accordance with Section 1501 of the Internal Revenue Code of 1986.
No affirmative elections have been made by Xxxxxxx or it Subsidiary concerning
the allocation or payment of the consolidated Federal Income Tax Liability. It
is the intent and desire of Xxxxxxx and the Subsidiary to make the elections
described below for the allocation of the Federal Income Tax Liability, to agree
on the payment of such allocations, to establish a method for compensating a
member of the group for tax savings created by the member, to deal with the
administration of the federal income tax liability and to provide for the
allocation and payment of any refund received in subsequent years.
NOW, THEREFORE, the parties to this Agreement agree as follows:
1. DEFINITIONS. The following defined terms shall have the following meanings
when used in this Agreement:
"Agreement" means this Tax Allocation Agreement.
"Subsidiary" means all Members of the Consolidated Group, other than Xxxxxxx.
"Consolidated Group", for any given year, means the "affiliated group" of
corporations of which Xxxxxxx is the "common parent corporation" as such terms
are defined in Section 1504(a)(1) of the Code.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Consolidated Return" means the consolidated federal income tax return of the
Consolidated Group for each year to be filed by Xxxxxxx on behalf of the
Consolidated Group.
"Consolidated Tax Liability" shall mean with respect to a taxable year or
portion thereof the consolidated federal income tax liability shown on a
Consolidated Return.
"CR Tax" shall mean that portion of the Consolidated Tax Liability allocated to
a Member pursuant to Section 4 of this Agreement.
"IRS" means the Internal Revenue Service.
"Loss Member" shall mean a Member whose losses and/or credits have resulted in
Tax Savings for one or more Members.
"Member" shall mean Xxxxxxx and the Subsidiary listed above which is part of
the Consolidated Group, and including any corporation which subsequent to the
date of this Agreement is an "includable corporation" as defined in Section
1504(b) of the Code, for which the ownership requirements of Section 1504(1)
are met, and which becomes a party to this Agreement pursuant to Section 15
of this Agreement.
"Other Taxes" shall mean any taxes (including any penalties and interest) other
than federal income taxes (e.g., state and local income taxes, franchise taxes,
and various taxes, foreign income, transfer taxes).
"SR Tax" shall mean with respect to a particular tax year the "separate
return tax liability" of a Member as determined pursuant to Treas. Reg.
Section 1.1552-1(a)(2)(ii) except that such determination shall not take into
account any net operating losses or tax credits which are not utilized in the
computation of Consolidated Tax Liability.
"Tax Savings" shall mean with respect to a Member for any particular tax year,
the excess of such corporation's SR Tax over such corporation's CR Tax.
"Tax Savings Member" with respect to a particular tax year shall mean a Member
who has a Tax Savings.
"Treas. Reg." shall mean the regulations promulgated under the Code by the
United States Department of the Treasury, as such regulations may be amended
from time to time.
2. FILING CONSOLIDATED RETURN. A Consolidated Return shall be filed by Xxxxxxx
for the taxable year ended December 31, 1999, and for each year thereafter in
which the Consolidated Group is permitted to so file, unless Xxxxxxx, in its
sole discretion, elects to no longer file a Consolidated Return.
The Subsidiary agrees to furnish all information, execute all consents and
elections, and provide all other documents which may be required or appropriate
to evidence such consent and to prepare and file such Consolidated Returns,
including extensions, as Xxxxxxx may request.
Xxxxxxx shall have the exclusive authority to represent any Member before the
IRS or any other governmental agency or authority or any court regarding all
federal income tax matters relating to the Consolidated Return, including (i)
the exclusive control of any response to any examination by the IRS or any other
taxing authority, and (ii) the exclusive control over any contest or
controversies relating to the Consolidated Return, including whether and in what
forum to conduct such contest and whether and on what basis to settle such
contest. Xxxxxxx shall notify the relevant Subsidiary of any correspondence or
other inquiry from the IRS concerning such Subsidiary and will allow such
Subsidiary to consult with Xxxxxxx concerning the inquiry,
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examination or controversy. The agreement in this section 2 shall survive the
termination of this Agreement with respect to any taxable year (or portion
thereof) ending on or prior to termination of this Agreement.
The Subsidiary shall have the right to review the portions of the
Consolidated Return relating to the Subsidiary's income and expenses, and any
related elections, and comment thereon. Xxxxxxx will deliver the portions of
the Consolidated Return, including elections, that are relevant to the
Subsidiary no later than 30 days prior to the filing of the return. Xxxxxxx
will consider the comments of the Subsidiary, but will retain the right to
make all decisions with respect to the preparation and filing of the
Consolidated Return.
3. ALLOCATION OF CONSOLIDATED TAX LIABILITY. With respect to the
determination of earnings and profits for federal income tax purposes, the
Consolidated Tax Liability for each taxable year shall be allocated among the
Members in accordance with the methods prescribed in Treas. Reg. Section
1.1552-1(a)(2) and Treas. Reg. Section 1.1502-33(d)(2)(ii) commencing with
the tax year ending December 31, 1999. The fixed percentage to be used for
purposes of Treas. Reg. Section 1.1502-33(d)(2)(ii)(b) is 100 percent.
4. COMPENSATION FOR TAX SAVINGS.
In order to compensate a Member for the use of its net operating losses or tax
credits in arriving at the Consolidated Tax Liability, the following steps shall
be taken:
The Consolidated Tax Liability shall be determined under Treasury Regulation
Section 1.1502-2 and shall be allocated to each Member in accordance with
Treasury Regulation Section 1.1552-1(a)(2). Each Member shall be liable to
Xxxxxxx for the amount of Consolidated Tax Liability allocated to it pursuant
to the provisions of this Section 4.
The Tax Savings shall be calculated with respect to each Member.
Each Tax Savings Member shall be liable for and pay, pursuant to the
provisions of section 5 of this Agreement, the amount of its Tax Savings to
Xxxxxxx. Any Loss Member or Loss Members which cause a Tax Savings shall be
paid the amount of such Tax Savings by Xxxxxxx in accordance with the
"consistent method" requirements of Treas. Reg. Section 1.1502-33(d)(ii)(c).
Such payments will generally be deemed consistent if the payment to the Loss
Member is equal to (a) in the case of net operating losses, the product of
(i) the amount of net operating losses of such Loss Member claimed as
deductions in computing the Consolidated Tax Liability used in the
calculation of the Tax Savings times (ii) the effective overall tax rate
applicable to the Consolidated Return filed for the taxable year in which the
net operating losses are so claimed as deductions and (b) in the case of tax
credits, (i) 100 percent of the tax credits of such Loss Member utilized in
the determination of Consolidated Tax Liability, reduced by (ii) the amount
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by which the SR Tax of the Loss Member computed without regard to such credits
exceeds the CR Tax of the Loss Member.
In determining the "net operating loss" of a Loss Member, the principles of
Revenue Ruling 66-374, 1966-2 C.B. 427, shall be utilized; thus, the "net
operating loss" of a Loss Member is the deduction which such Loss Member
would have had available if it actually filed a separate return for the year
and would not include any portion of a Loss Member's net operating loss
sustained in a prior or subsequent year which had been absorbed by the
Consolidated Group or by the Loss Member in computing the Consolidated Tax
Liability or an SR Tax.
In no event shall a Tax Savings payment be made to a Loss Member unless the net
operating loss and/or tax credit to which such payment relates resulted in a
reduction in the Consolidated Tax Liability.
In calculating the amount of Tax Savings resulting from a carryback or
carryover of net operating losses, adjustment shall be made to the SR Tax for
such prior or subsequent year as required under Section 172(b)(2) and 172(d)
of the Code. For purposes of this calculation, the election under Section
172(b)(3)(C) of the Code shall be made on a separate return basis; provided,
however, the decision to make any such election under Section 172(b)(3)(C)
and Treas. Reg. Sec. 1.1502-21(b)(3) shall be in the sole discretion of
Xxxxxxx.
The liability of Subsidiary to Xxxxxxx for the amount of the Subsidiary's CR Tax
shall be represented on the books of Subsidiary and Xxxxxxx, as an account
payable and account receivable, respectively. The liability of a Tax Savings
Member to pay the amount of its Tax Savings to Xxxxxxx shall be represented on
the books of such Tax Savings Member as an account payable, and the right of a
Loss Member to receive payments of Tax Savings from Xxxxxxx shall be represented
on the books of such Loss Member as an account receivable. Payment of such
accounts shall be made in accordance with the provisions of section 5 of this
Agreement.
5. PAYMENTS BY AND TO MEMBERS. With respect to each taxable year (or relevant
portion thereof), Subsidiary shall pay to Xxxxxxx the amount of Subsidiary's CR
Tax. With respect to the discharge of intercompany accounts relating to payments
of Tax Savings, a Tax Savings Member shall pay the amount of its Tax Savings to
Xxxxxxx. With respect to payment of Tax Savings to Loss Members, Xxxxxxx shall
pay to each Loss Member such Loss Member's allocable share of the total Tax
Savings. All payments to be made pursuant to this section 5 shall be made (i)
within 30 days of the date of filing of the Consolidated Return to which such
payments relate, or, (ii) if the payment is with respect to an amended
Consolidated Return for which a Subsidiary has a CR Tax increase, within 30 days
after the filing of the amended return, or, (iii) if payment is due to a Loss
Member because of a carryback to a Consolidated Return of a consolidated net
operating loss allocable to such Loss Member, payment shall be made within 30
days after the refund is received or the reduction in Consolidated Tax Liability
is otherwise realized.
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6. ESTIMATED CONSOLIDATED TAX LIABILITY PAYMENTS. Xxxxxxx shall have the right
to assess Subsidiary for its share of estimated federal income tax payments to
be made with respect to the projected Consolidated Tax Liability for each
taxable year. Subsidiary shall make such payment to Xxxxxxx within fifteen days
after such assessment. Subsidiary that makes payments under this section will
receive credit for its payments of estimated federal income tax in the
computation of the payments under Section 5 of this Agreement.
7. CARRYBACKS AND CARRYOVERS OF LOSSES AND CREDITS. If part of or all of an
unused consolidated net operating loss or tax credit is allocated to a Member
pursuant to Treas. Reg. Section 1.1502-21(b), and it is carried back or
forward to a year in which such Member filed a separate income tax return or
was included in a consolidated federal income tax return with another
affiliated group, any refund or reduction in federal income tax liability
arising from the carryback or carryover shall be retained by such Member (or,
if appropriate, paid to such Member if a refund is received by another
Member). Nothing in this section shall preclude Xxxxxxx from making the
election under Treas. Reg. Sec. 1.1502-20(g) to reattribute losses to Xxxxxxx
upon the departure of a Subsidiary from the Consolidated Group. The decision
to make such an election will be solely determined by Xxxxxxx.
8. ADJUSTMENTS TO CONSOLIDATED TAX LIABILITY.
If Consolidated Tax Liability is adjusted for any taxable period, whether by
means of an amended return, claim for refund, or examination by the IRS, the
computations made under Sections 3 and 4 of this Agreement shall be
recomputed taking into account such adjustments, and appropriate conforming
payments made. In the case of a refund, if any, Xxxxxxx shall make payment to
the appropriate Member within fifteen days after the refund is received by
Xxxxxxx. In the case of an increase in the Consolidated Tax Liability, each
Member obligated to make prompt payment under the recomputed allocation shall
pay such amount to Xxxxxxx upon the receipt of notice of such liability from
Xxxxxxx.
If any interest is to be paid or received as a result of a consolidated federal
income tax deficiency or refund, such interest shall be allocated to the Members
in the ratio that each Member's allocated share of the change in Consolidated
Tax Liability bears to the total change in Consolidated Tax Liability. Any
penalty not specifically allocated to a Member by the IRS shall be allocated
upon such basis as interest is allocable as described above; provided, however,
that if e-PROFILE disagrees with any reporting position taken by Xxxxxxx as
agent for e-Profile on a Consolidated Return for any taxable year in which
e-PROFILE has shareholders other than Members, and e-PROFILE obtains an opinion
of counsel or a national accounting firm advising against taking such position,
Xxxxxxx agrees to indemnify and reimburse e-PROFILE for any penalties paid by or
allocated to it which are attributable to such reporting position. e-PROFILE
will be deemed to disagree with a position only if it delivers the required
opinion no later than 20 days after the receipt of the materials to be delivered
by Xxxxxxx in accord with Section 2. If
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Xxxxxxx fails to timely provide the materials required in Section 2,
e-PROFILE shall be deemed to have disagreed with the reporting position if it
delivers the required opinion within a reasonable time after it learns of the
objectionable reporting position.
9. TERM OF THIS AGREEMENT. This Agreement shall apply to the taxable year
ending December 31, 1999, and all subsequent years or portions thereof,
unless the Members agree in writing to terminate the Agreement.
Notwithstanding such termination, this Agreement shall continue in effect
with respect to any payment or refunds due for, and audits and tax contests
with respect to taxable periods prior to termination. Nothing herein shall be
construed to prevent Xxxxxxx from terminating its election to file a
Consolidated Return.
10. ASSIGNABILITY. This Agreement may not be assigned by a party without the
prior written consent of the other parties to this Agreement.
11. EFFECT OF CHANGES TO THE CODE. Any alteration, modification, addition,
deletion, or other change in the federal income tax laws or regulations
relating to consolidated federal income tax returns shall automatically be
applicable to this Agreement, provided, however, that if all of the parties
to this Agreement agree, this Agreement shall be amended or terminated in the
event of any such alteration, modification, addition, deletion or other
change.
12. OTHER TAXES. To the extent two or more Members are required or permitted to
file consolidated, combined or unitary tax returns with respect to Other Taxes,
the provisions of this Agreement relating to federal income tax matters shall
apply to such Other Taxes as if they were federal income taxes. If such a
consolidated, combined or unitary tax return with respect to any Other Taxes is
not filed, each Member shall be responsible for the reporting and payment of any
Other Taxes applicable to such Member.
13. RECORD RETENTION. Records relating to the calculation and reporting of the
Consolidated Tax Liability, including returns, supporting schedules, workpapers,
correspondence, software and data bases, shall be retained by the Members in
accord with Xxxxxxx'x record retention policy, but for at least as long as they
may be material to the determination of such liability or refunds. Xxxxxxx shall
make reasonably available to Members all such materials.
14. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto; but no
assignment shall relieve any party's obligations hereunder without the written
consent of the other parties. If a Member leaves the Consolidated Group, it
shall continue to be bound by this Agreement with respect to any matter which
involves a taxable year (or portion thereof) during which such Member was
included in a Consolidated Return.
15. NEW MEMBERS. The Members recognize that from time to time other corporations
may become Members of the Consolidated Group and agree that such new Members may
become
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parties to this Agreement by signing a joinder substantially in the form of that
attached as Exhibit A.
16. GOVERNING LAW. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania, without regard to its conflict of laws provisions.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
subscribed and executed by their respective authorized officers on the dates
indicated, effective as of the date first written above.
XXXXXXX COMPUTER ASSOCIATES, INC. e-PROFILE, Inc.
By: /s/ X. XxXxxxx By: /s/ X. XxXxxxxx
Title: CFO Title: CFO
Date: 3/3/00 Date: 3/3/00
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EXHIBIT A
TO
TAX ALLOCATION AGREEMENT
This instrument forms part of the Tax Allocation Agreement dated
__________, 200_ among Xxxxxxx Computer Associates, Inc.. and its Subsidiaries
(the "Agreement"). The Agreement provides that a corporation which becomes a
Member of the Consolidated Group (as such terms are defined in the Agreement)
may become a party to the Agreement by signing this joinder. The below
identified authorized officer of . acknowledges having received a copy of the
Agreement and having read the Agreement, hereby agrees that. as of
_______________, shall be a party to the Agreement for the
period___________________ and all subsequent years, or portion thereof and shall
be a Member as defined in the Agreement.
____________________________ Date
By:__________________________
Title:_________________________
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