Exhibit 10.7
[5/13/03]
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FORM OF
TAX ALLOCATION AGREEMENT
by and between
CONEXANT SYSTEMS, INC.
and
MINDSPEED TECHNOLOGIES, INC.
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[ ], 2003
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS............................................... 1
Section 1.01 General................................................... 1
Section 1.02 Schedules, etc............................................ 8
ARTICLE II FILING OF TAX RETURNS; PAYMENT OF TAXES; REFUNDS.......... 8
Section 2.01 Preparation of Tax Returns................................ 8
Section 2.02 Payment of Taxes.......................................... 10
Section 2.03 Tax Refunds and Carrybacks................................ 13
Section 2.04 Allocation of Straddle Period Taxes....................... 14
ARTICLE III TAX INDEMNIFICATION; TAX CONTESTS......................... 15
Section 3.01 Indemnification........................................... 15
Section 3.02 Mindspeed Tax Acts........................................ 17
Section 3.03 Notice of Indemnity....................................... 18
Section 3.04 Payments.................................................. 18
Section 3.05 Tax Contests.............................................. 20
ARTICLE IV OPTIONS; COMPENSATION PAYMENTS; INTEREST CHARGE FOR LATE
PAYMENTS; CURRENCY CALCULATIONS; EFFECTIVE TIME OF
TRANSACTIONS.............................................. 21
Section 4.01 Stock Options; Restricted Shares.......................... 21
Section 4.02 Compensation Payments..................................... 23
Section 4.03 Change in Law............................................. 24
Section 4.04 Interest Charge for Late Payments......................... 24
Section 4.05 Currency Calculations..................................... 24
Section 4.06 Effective Time of Transaction............................. 24
ARTICLE V COOPERATION AND EXCHANGE OF INFORMATION................... 25
Section 5.01 Inconsistent Actions...................................... 25
Section 5.02 [Intentionally Omitted]................................... 25
Section 5.03 [Intentionally Omitted]................................... 25
Section 5.04 Cooperation and Exchange of Information................... 25
Section 5.05 Tax Records............................................... 26
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ARTICLE VI MISCELLANEOUS............................................. 27
Section 6.01 Entire Agreement; Construction............................ 27
Section 6.02 Effectiveness............................................. 27
Section 6.03 Survival of Agreements.................................... 27
Section 6.04 Governing Law............................................. 27
Section 6.05 Notices................................................... 27
Section 6.06 Amendments................................................ 28
Section 6.07 Successors and Assigns.................................... 28
Section 6.08 Captions; Currency........................................ 28
Section 6.09 Severability.............................................. 28
Section 6.10 Parties in Interest....................................... 28
Section 6.11 Schedules................................................. 29
Section 6.12 Termination............................................... 29
Section 6.13 Waivers; Remedies......................................... 29
Section 6.14 Counterparts.............................................. 29
Section 6.15 Performance............................................... 29
Section 6.16 Interpretation............................................ 29
Section 6.17 Dispute Resolution........................................ 30
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TAX ALLOCATION AGREEMENT
TAX ALLOCATION AGREEMENT (this "AGREEMENT") dated as of [ ], 2003 by
and between CONEXANT SYSTEMS, INC., a Delaware corporation ("CONEXANT"), and
MINDSPEED TECHNOLOGIES, INC., a Delaware corporation and, as of the date hereof,
a wholly-owned subsidiary of Conexant ("MINDSPEED").
WHEREAS, the Conexant Board (as defined herein) has determined that
it is appropriate and desirable, subject to the terms and conditions contained
in the Distribution Agreement by and between Conexant and Mindspeed dated as of
the date hereof ("DISTRIBUTION AGREEMENT") for Conexant to distribute on a pro
rata basis to holders of shares of Conexant Common Stock (as defined herein) the
outstanding shares of Mindspeed Common Stock owned by Conexant; and
WHEREAS, Conexant and Mindspeed wish to provide for and agree upon
the allocation between the Conexant Tax Group (as defined herein) and the
Mindspeed Tax Group (as defined herein) of all responsibilities, liabilities and
benefits relating to or affecting Taxes (as defined herein) paid or payable by
either of them for all taxable periods, whether beginning before, on or after
the Distribution Date (as defined herein).
NOW, THEREFORE, in consideration of the premises and of the
respective agreements contained in this Agreement, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 GENERAL. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined). Any capitalized term
not otherwise defined in this Agreement shall have the meaning ascribed to it in
the Distribution Agreement.
"ACTUALLY REALIZED" shall mean, for purposes of determining the
timing of any Taxes (or related Tax cost or benefit) relating to any payment,
transaction, occurrence or event, the time at which the amount of Taxes
(including estimated Taxes) payable by any person is increased above or reduced
below, as the
case may be, the amount of Taxes that such person would be required to pay but
for the payment, transaction, occurrence or event.
"BOEING" shall mean The Boeing Company, a Delaware corporation.
"BOEING TAX GROUP" shall mean Boeing and its affiliates.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, or
any successor legislation.
"COMPENSATION PAYMENTS" shall mean all non-qualified employee
benefit plan and welfare benefit plan payments made under the Employee Matters
Agreement dated the date hereof by and between Conexant and Mindspeed.
"CONEXANT" shall have the meaning ascribed thereto in the preamble.
"CONEXANT BOARD" shall mean the Board of Directors of Conexant or a
duly authorized committee thereof.
"CONEXANT COMMON STOCK" shall mean the Common Stock, par value of $1
per share, of Conexant and the associated preferred share purchase rights.
"CONEXANT COMMON STOCK OPTIONS" shall mean options to acquire
Conexant Common Stock.
"CONEXANT GROUP EMPLOYEES AND FORMER EMPLOYEES" shall mean
individuals (i) who are employees of any member of the Conexant Tax Group on the
date of the event giving rise to a deduction in respect of any Compensation
Payments made to such individuals or Stock Options or Restricted Stock held by
such individuals, or (ii) whose most recent employment with any member of the
Conexant Tax Group or the Mindspeed Tax Group prior to such date was more
closely associated with the Broadband Business or some other business rather
than the Mindspeed Business.
"CONEXANT/MINDSPEED TAX GROUP" shall mean any corporation or other
legal entity which is a member of the Conexant Tax Group or the Mindspeed Tax
Group but only with respect to taxable periods (or portions thereof) ending on
or before or including the Distribution Date.
"CONEXANT RESTRICTED STOCK" shall mean shares of Conexant Common
Stock subject to restrictions on transferability and subject to a substantial
risk of forfeiture.
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"CONEXANT TAX GROUP" shall mean (i) Conexant, (ii) any corporation
or other legal entity which Conexant directly or indirectly owns immediately
following the Distribution Date other than a member of the Mindspeed Tax Group,
(iii) any other corporation or other legal entity which Conexant directly or
indirectly owned at any time prior to the Distribution Date (but only with
respect to the period such corporation or other entity was so owned by Conexant)
other than a member of the Mindspeed Tax Group, and (iv) solely for purposes of
this Agreement and not for purposes of any other Separation Agreement, for any
taxable period up to or including (A) December 6, 0000, Xxx Xxxxxxxx and any
other corporation or legal entity owned by Old Rockwell other than a member of
the Mindspeed Tax Group and (B) December 30, 1998, Rockwell and any other
corporation or legal entity owned by Rockwell other than a member of the
Mindspeed Tax Group.
"DISTRIBUTION" shall mean the distribution of the Mindspeed Common
Stock on a pro rata basis to holders of Conexant Common Stock on the
Distribution Date pursuant to the Distribution Agreement.
"DISTRIBUTION AGREEMENT" shall have the meaning ascribed thereto in
the preamble.
"DISTRIBUTION TRANSACTION" shall mean any transaction undertaken in
connection with the Distribution except for those transactions specified on
Schedule 1.01(A) that are being carried out for business reasons unrelated to
the Distribution.
"DISTRIBUTION DATE" shall mean the date on which the Distribution
occurs (or, if different, the date on which the Distribution is deemed to occur
for U.S. federal Income Tax purposes). For purposes of this Agreement, the
Distribution shall be deemed effective as of the end of the day on the
Distribution Date.
"FOREIGN INCOME TAX" shall mean any Income Tax other than a U.S.
federal, state or local Income Tax.
"FOREIGN INCOME TAX RETURNS" shall mean any Income Tax Return which
is not a U.S. federal, state or local Income Tax Return.
"INCOME TAX" shall mean (a) any Tax based upon, measured by, or
calculated with respect to (i) net income or profits (including, but not limited
to, any capital gains, minimum Tax and any Tax on items of Tax preference, but
not including sales, use, real or personal property, gross or net receipts,
transfer or similar Taxes) or (ii) multiple bases (including, but not limited
to, corporate franchise, doing business or occupation Taxes) if one or more of
the bases upon which such Tax may
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be based, measured by, or calculated with respect to, is described in clause (i)
above, or (b) any U.S. state or local franchise Tax; including in the case of
each of (a) and (b) any related interest and any penalties, additions to such
Tax or additional amounts imposed with respect thereto by any Tax Authority.
"INCOME TAX BENEFIT" shall mean for any taxable period the excess of
(i) the hypothetical Income Tax liability of the taxpayer for the taxable period
calculated as if the Timing Difference or Reverse Timing Difference, as the case
may be, had not occurred but with all other facts unchanged, over (ii) the
actual Income Tax liability of the taxpayer for the taxable period, calculated
taking into account the Timing Difference or Reverse Timing Difference, as the
case may be (treating an Income Tax refund or credit as a negative Income Tax
liability for purposes of such calculation).
"INCOME TAX DETRIMENT" shall mean for any taxable period the excess
of (i) the actual Income Tax liability of the taxpayer for the taxable period,
calculated taking into account the Timing Difference or Reverse Timing
Difference, as the case may be, over (ii) the hypothetical Income Tax liability
of the taxpayer for the taxable period, calculated as if the Timing Difference
or Reverse Timing Difference, as the case may be, had not occurred but with all
other facts unchanged (treating an Income Tax refund or credit as a negative
Income Tax liability for purposes of such calculation).
"INCOME TAX RETURN" shall mean any Tax Return that relates to Income
Taxes.
"INDEMNITEE" shall have the meaning set forth in Section 3.03.
"INDEMNITOR" shall have the meaning set forth in Section 3.03.
"INDEMNITY ISSUE" shall have the meaning set forth in Section 3.03.
"IRS" shall mean the Internal Revenue Service.
"MINDSPEED" shall have the meaning ascribed thereto in the preamble.
"MINDSPEED COMMON STOCK" shall mean the Common Stock par value $1.00
per share of Mindspeed, and the related Rights.
"MINDSPEED COMMON STOCK OPTIONS" shall mean options to acquire
Mindspeed Common Stock.
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"MINDSPEED GROUP EMPLOYEES AND FORMER EMPLOYEES" shall mean
individuals (i) who are employees of any member of the Mindspeed Tax Group on
the date of the event giving rise to a deduction in respect of any Compensation
Payments made to such individuals or Stock Options held by such individuals or
(ii) whose most recent employment with any member of the Conexant Tax Group or
the Mindspeed Tax Group prior to such date was more closely associated with the
Mindspeed Business rather than the Broadband business or some other business.
"MINDSPEED TAX ACT" shall have the meaning set forth in Section
3.02(a).
"MINDSPEED TAX GROUP" shall mean (i) Mindspeed and (ii) any
corporation or other legal entity set forth on Schedule 1.01(B).
"MINDSPEED TAX REPRESENTATION LETTER" shall mean the letter
delivered by Mindspeed to Conexant on the Distribution Date, substantially in
the form set forth in Schedule 3.02(b) attached hereto.
"NON-INCOME TAX" shall mean any Tax other than an Income Tax.
"OLD ROCKWELL" shall mean the corporation, formerly named Rockwell
International Corporation, which owned all of the Rockwell Common Stock prior to
the distribution of the Rockwell Common Stock to the shareholders of such
corporation on December 6, 1996.
"PERSON" shall mean any individual, partnership, joint venture,
corporation, limited liability entity, trust, unincorporated organization or
other entity (including a governmental entity).
"POST-DISTRIBUTION TAXABLE PERIOD" shall mean a taxable period
beginning after the Distribution Date.
"POST-DISTRIBUTION TAX ACT" shall have the meaning set forth in
Section 3.01(a).
"POST-TAX INDEMNIFICATION PERIOD" shall mean any Post-Distribution
Taxable Period and that portion of any Straddle Period that begins on the day
after the Distribution Date.
"PRE-DISTRIBUTION TAXABLE PERIOD" shall mean a taxable period ending
on or before the Distribution Date.
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"RESTRICTED STOCK" shall mean Conexant Restricted Stock or Mindspeed
Restricted Stock.
"REVERSE TIMING DIFFERENCE" shall mean an increase in income, gain
or recapture, or a decrease in deduction, loss or credit, as calculated for
Income Tax purposes, of the taxpayer for the Tax Indemnification Period coupled
with an increase in deduction, loss or credit, or a decrease in income, gain or
recapture, of the taxpayer for any Post-Tax Indemnification Period.
"RIGHTS" shall have the meaning ascribed thereto in the Distribution
Agreement.
"ROCKWELL" shall mean Rockwell Automation, Inc., formerly named
Rockwell International Corporation, a Delaware corporation.
"ROCKWELL COMMON STOCK" shall mean the Common Stock, par value of $1
per share, of Rockwell.
"ROCKWELL TAX GROUP" shall mean Rockwell and its affiliates.
"SEPARATION AGREEMENTS" shall have the meaning ascribed thereto in
the Distribution Agreement.
"STOCK OPTIONS" shall mean Mindspeed Common Stock Options or
Conexant Common Stock Options.
"STRADDLE PERIOD" shall mean a taxable period that includes but does
not end on the Distribution Date.
"TAX" and "TAXES" shall mean all forms of taxation, whenever created
or imposed, and whether of the United States or elsewhere, and whether imposed
by a federal, state, municipal, governmental, territorial, local, foreign or
other body, and without limiting the generality of the foregoing, shall include
net income, gross income, gross receipts, sales, use, value added, ad valorem,
transfer, recording, franchise, profits, license, lease, service, service use,
payroll, wage, withholding, employment, unemployment insurance, workers
compensation, social security, excise, severance, stamp, business license,
business organization, occupation, premium, property, environmental, windfall
profits, customs, duties, alternative minimum, estimated or other taxes, fees,
premiums, assessments or charges of any kind whatever imposed or collected by
any governmental entity or political subdivision thereof, together with any
related interest and any penalties, additions to such tax or additional amounts
imposed with respect thereto by any Tax Authority.
"TAX AUTHORITY" shall mean, with respect to any Tax, any
governmental entity, quasi-governmental body or political subdivision thereof
that
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imposes such Tax and the agency (if any) charged with the determination or
collection of such Tax for such entity, body or subdivision.
"TAX GROUP" shall mean the Conexant Tax Group or the Mindspeed Tax
Group, as the case may be.
"TAX INDEMNIFICATION PERIOD" shall mean any Pre-Distribution Taxable
Period and that portion of any Straddle Period that ends on the Distribution
Date.
"TAX RETURN" shall mean any return, filing, questionnaire,
information return, election or other document required or permitted to be
filed, including requests for extensions of time, filings made with respect to
estimated tax payments, claims for refund and amended returns that may be filed,
for any period with any Tax Authority (whether domestic or foreign) in
connection with any Tax (whether or not a payment is required to be made with
respect to such filing).
"TIMING DIFFERENCE" means an increase in income, gain or recapture,
or a decrease in deduction, loss or credit, as calculated for Income Tax
purposes, of the taxpayer for any Post-Tax Indemnification Period coupled with
an increase in deduction, loss or credit, or a decrease in income, gain or
recapture, of the taxpayer for the Tax Indemnification Period.
"WIRELESS DISTRIBUTION" shall mean the distribution of the
Washington common stock on a pro rata basis to holders of Conexant Common Stock
on June 25, 2002 pursuant to the Contributions and Distribution Agreement by and
between Conexant and Washington Sub, Inc. dated December 16, 2001, as amended as
of June 25, 2002.
"WIRELESS RULING REQUEST" shall mean the private letter ruling
request dated January 10, 2002 filed by Conexant with the IRS (as modified or
supplemented by any materials submitted to the IRS), seeking rulings that, inter
alia, the Wireless Distribution qualified for U.S. federal Income Tax purposes
as a tax-free reorganization under Section 368(a)(1)(D) of the Code.
"WIRELESS TRANSACTION AGREEMENTS" shall have the meaning ascribed to
the phrase "Transaction Agreements" in the Contribution and Distribution
Agreement by and between Conexant and Washington Sub, Inc. dated December 16,
2001, as amended as of June 25, 2002.
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SECTION 1.02 SCHEDULES, ETC. References to a "Schedule" are, unless
otherwise specified, to a Schedule attached to this Agreement; references to
"Section" or "Article" are, unless otherwise specified, to one of the Sections
or Articles of this Agreement; references to "sub-section" are, unless the
context otherwise requires, references to the section in which the reference
appears; and references to this Agreement include the Schedules.
ARTICLE II
FILING OF TAX RETURNS; PAYMENT OF TAXES; REFUNDS
SECTION 2.01 PREPARATION OF TAX RETURNS.
(a) UNITED STATES FEDERAL INCOME TAX RETURNS.
(i) Conexant shall prepare and file or cause to be prepared and
filed all U.S. federal Income Tax Returns (including amendments thereto) which
are required to be filed in respect of (A) a member of the Conexant Tax Group
for any Pre-Distribution Taxable Period or Straddle Period or (B) a member of
the Conexant Tax Group for any Post-Distribution Taxable Period. Mindspeed
hereby irrevocably designates, and agrees to cause each of its affiliates to so
designate, Conexant as its agent to take any and all actions necessary or
incidental to the preparation and filing of such U.S. federal Income Tax Returns
of Conexant's affiliated group.
(ii) All U.S. federal Income Tax Returns (including amendments
thereto) required to be filed in respect of a member of the Mindspeed Tax Group
which are not the responsibility of the Conexant Tax Group are the
responsibility of the Mindspeed Tax Group.
(b) UNITED STATES STATE AND LOCAL INCOME TAX RETURNS.
(i) Conexant shall prepare and file or cause to be prepared and
filed all U.S. state and local Income Tax Returns (including amendments thereto)
which are required to be filed in respect of (A) a member of the
Conexant/Mindspeed Tax Group for any Pre-Distribution Taxable Period or Straddle
Period including consolidated, combined and unitary Tax Returns including a
member of the Mindspeed Tax Group, (B) any member of the Mindspeed Tax Group for
any Pre-Distribution Period or Straddle Period in which it conducts or has
conducted both a Conexant business and a Mindspeed business or (C) a member of
the Conexant Tax
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Group for any Post-Distribution Taxable Period. Mindspeed hereby irrevocably
designates, and agrees to cause each of its affiliates to so designate, Conexant
as its agent to take any and all actions necessary or incidental to the
preparation and filing of such U.S. state and local Income Tax Returns of
members of the Conexant Tax Group.
(ii) All U.S. state and local Income Tax Returns (including
amendments thereto) required to be filed in respect of a member of the Mindspeed
Tax Group which are not the responsibility of the Conexant Tax Group shall be
the responsibility of the Mindspeed Tax Group.
(c) FOREIGN INCOME TAX RETURNS.
(i) Conexant shall prepare and file or cause to be prepared and
filed all Foreign Income Tax Returns (including amendments thereto) which are
required to be filed in respect of (A) a member of the Conexant Tax Group for
any Pre-Distribution Taxable Period or Straddle Period, (B) a member of the
Mindspeed Tax Group for any Pre-Distribution Period or Straddle Period in which
it conducts, or has conducted, both a Conexant business and a Mindspeed
business, or (C) a member of the Conexant Tax Group for any Post-Distribution
Taxable Period. Mindspeed hereby irrevocably designates, and agrees to cause
each of its affiliates to so designate, Conexant as its agent to take any and
all actions necessary or incidental to the preparation and filing of such
Foreign Income Tax Returns of members of the Conexant Tax Group.
(ii) All Foreign Income Tax Returns (including amendments thereto)
required to be filed in respect of a member of the Mindspeed Tax Group which are
not the responsibility of the Conexant Tax Group shall be the responsibility of
the Mindspeed Tax Group.
(d) NON-INCOME TAX RETURNS.
(i) Conexant shall prepare and file or cause to be prepared and
filed all Tax Returns (including amendments thereto) which are Non-Income Tax
Returns which are required to be filed in respect of (A) a member of the
Conexant Tax Group for any Pre-Distribution Taxable Period or Straddle Period),
(B) any member of the Mindspeed Tax Group for any Pre-Distribution Period or
Straddle Period in which it conducts or has conducted both a Conexant business
and a Mindspeed business or (C) a member of the Conexant Tax Group for any
Post-Distribution Taxable Period. Mindspeed hereby irrevocably designates, and
agrees to cause each of its affiliates to so designate, Conexant as its agent to
take any
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and all actions necessary or incidental to the preparation and filing of such
non-U.S. federal Income Tax Returns.
(ii) All Non-Income Tax Returns (including amendments thereto)
required to be filed in respect of a member of the Mindspeed Tax Group which are
not the responsibility of the Conexant Tax Group shall be the responsibility of
the Mindspeed Tax Group.
(e) CONSISTENT WITH PAST PRACTICE; REVIEW BY NON-RESPONSIBLE PARTY.
Unless Conexant and Mindspeed otherwise agree in writing, all Tax Returns
(including amendments thereto) described in this Section 2.01 filed after the
date of this Agreement for Pre-Distribution Taxable Periods or Straddle Periods,
in the absence of a controlling change in law or circumstances, 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 matters have been filed. Upon the
request of the non-responsible party, the party responsible under this Section
2.01 for preparation of a particular Tax Return for Pre-Distribution Taxable
Periods or Straddle Periods shall make available a draft of such Tax Return (or
relevant portions thereof) for review and comment by such non-responsible party.
Subject to the provisions of this Agreement, all decisions relating to the
preparation of Tax Returns shall be made in the sole discretion of the party
responsible under this Agreement for such preparation.
(f) RESPONSIBILITY FOR FILING. Although, pursuant to this Agreement,
Conexant or Mindspeed may be responsible for filing a particular Tax Return,
Conexant and Mindspeed have agreed that the actual preparation and filing of
certain Tax Returns will be done by the non-responsible party. Schedule 2.01(f)
attached hereto sets forth a schedule specifying such Tax Returns. Conexant and
Mindspeed may agree from time to time to additions to or deletions from Schedule
2.01(f).
SECTION 2.02 PAYMENT OF TAXES.
(a) UNITED STATES FEDERAL INCOME TAXES. Except as otherwise provided
in this Agreement:
(i) Conexant shall pay or cause to be paid, on a timely basis, all
Taxes due with respect to the consolidated U.S. federal Income Tax liability for
(A) all members of the Conexant Tax Group for any Pre-Distribution Taxable
Period or Straddle Period, including consolidated Tax Returns also including a
member of the Mindspeed Tax Group, and (B) any member of the Conexant Tax Group
for any Post-Distribution Taxable Period, provided, however, that Mindspeed, on
behalf of
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the Mindspeed Tax Group hereby assumes and agrees to pay directly to or at the
direction of Conexant, at least five days prior to the date payment (including
estimated payment) thereof is due, the share of such U.S. federal Income Tax
liability of any member of the Mindspeed Tax Group attributable to the Mindspeed
business, assets or activities allocated between the Conexant Tax Group, on the
one hand, and the Mindspeed Tax Group, on the other hand, determined in a manner
analogous to that set forth in Treasury Regulation Section 1.1552-1(a)(2).
(ii) Mindspeed shall pay or cause to be paid, on a timely basis, all
U.S. federal Income Taxes of the Mindspeed Tax Group which are not the
responsibility of the Conexant Tax Group.
(b) UNITED STATES STATE AND LOCAL INCOME TAXES. Except as otherwise
provided in this Agreement:
(i) Conexant shall pay or cause to be paid, on a timely basis, all
Taxes due with respect to the state and local Income Tax liability for (A) all
members of the Conexant Tax Group for any Pre-Distribution Taxable Period or
Straddle Period, including consolidated, combined and unitary Tax Returns also
including a member of the Mindspeed Tax Group, (B) any member of the Mindspeed
Tax Group for any Pre-Distribution Period or Straddle Period in which it
conducts or has conducted both a Conexant business and a Mindspeed business, and
(C) any member of the Conexant Tax Group for any Post-Distribution Taxable
Period, provided, however, that Mindspeed, on behalf of the Mindspeed Tax Group
hereby assumes and agrees to pay directly to or at the direction of Conexant, at
least five days prior to the date payment (including estimated payment) thereof
is due, the share of such U.S. state and local Tax liability of any member of
the Mindspeed Tax Group attributable to the Mindspeed business, assets or
activities allocated between the Conexant Tax Group, on the one hand, and the
Mindspeed Tax Group, on the other hand, determined in a manner analogous to that
set forth in Treasury Regulation Section 1.1552-1(a)(2).
(ii) Mindspeed shall pay or cause to be paid, on a timely basis, all
U.S. state and local Income Taxes of the Mindspeed Tax Group which are not the
responsibility of the Conexant Tax Group.
(c) FOREIGN INCOME TAXES. Except as otherwise provided in this
Agreement:
(i) Conexant shall pay or cause to be paid, on a timely basis, all
Taxes due with respect to the Foreign Income Tax liability for (A) all members
of the Conexant Tax Group for any Pre-Distribution Taxable Period or Straddle
Period,
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(B) any member of the Mindspeed Tax Group for any Pre-Distribution Period or
Straddle Period in which it conducts, or has conducted, both a Conexant business
and a Mindspeed business, or (C) any member of the Conexant Tax Group for any
Post-Distribution Taxable Period, provided, however, that Mindspeed, on behalf
of the Mindspeed Tax Group hereby assumes and agrees to pay directly to or at
the direction of Conexant, at least five days prior to the date payment
(including estimated payment) thereof is due, the share of such Foreign Income
Tax liability of any member of the Mindspeed Tax Group attributable to the
Mindspeed business, assets or activities allocated between the Conexant Tax
Group, on the one hand, and the Mindspeed Tax Group, on the other hand,
determined in a manner analogous to that set forth in Treasury Regulation
Section 1.1552-1(a)(2).
(ii) Mindspeed shall pay or cause to be paid, on a timely basis, all
Foreign Income Taxes which are not the responsibility of the Conexant Tax Group.
(d) NON-INCOME TAXES. Except as otherwise provided in this
Agreement:
(i) Conexant shall pay or cause to be paid, on a timely basis, all
Taxes which are Non-Income Taxes due with respect to the Tax liability for (A)
all members of the Conexant Tax Group for any Pre-Distribution Taxable Period,
Straddle Period or Post-Distribution Taxable Period, (B) any member of the
Mindspeed Tax Group for any Pre-Distribution Period or Straddle Period in which
it conducts or has conducted both a Conexant business and a Mindspeed business.
and (C) a member of the Conexant Tax Group for any Post-Distribution Taxable
Period, provided, however, that Mindspeed, on behalf of the Mindspeed Tax Group
hereby assumes and agrees to pay directly to or at the direction of Conexant, at
least five days prior to the date payment (including estimated payment) thereof
is due, the share of such Non-Income Tax liability of any member of the
Mindspeed Tax Group, attributable to the Mindspeed business, assets or
activities.
(ii) Mindspeed shall pay or cause to be paid, on a timely basis, all
Taxes which are Non-Income Taxes which are not the responsibility of the
Conexant Tax Group.
(e) POST-DISTRIBUTION DATE TAXES. Except as otherwise provided in
this Agreement, all Taxes for all Post-Distribution Taxable Periods shall be
paid or caused to be paid by the party responsible under this Agreement for
filing the Tax Returns pursuant to which such Taxes are due or, if no such Tax
Returns are due, by the party liable for such Taxes.
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(f) CREDIT FOR PRIOR TAX PAYMENTS. To the extent any member of a Tax
Group has made a payment of Taxes (including estimated Taxes) on or before the
Distribution Date, the party liable for paying such Taxes under this Agreement
shall be entitled to treat the payment as having been paid or caused to have
been paid by such party, and such party shall not be required to reimburse the
party which actually paid such Taxes.
(g) RESPONSIBILITY FOR PAYMENT; NOTICE OF PAYMENT DUE. Although
Conexant or Mindspeed may be responsible for paying a particular Tax liability,
Conexant and Mindspeed may agree that the actual payment to a Taxing Authority
of certain Tax liabilities will be made by the non-responsible party. Conexant
and Mindspeed may agree to prepare a schedule setting forth such Tax liabilities
and may agree from time to time to additions to or deletions from such schedule.
In each case where Conexant or Mindspeed, as the case may be, is required to
make payment of Taxes to the other party, Conexant or Mindspeed, as the case may
be shall notify the other party as to the amount of Taxes due from the other
party at least five days prior to the date payment (including estimated payment)
is due.
SECTION 2.03 TAX REFUNDS AND CARRYBACKS.
(a) RETENTION AND PAYMENT OF TAX REFUNDS. Except as otherwise
provided in this Agreement, Conexant shall be entitled to retain, and to receive
within ten days after Actually Realized by the Mindspeed Tax Group, the portion
of all refunds or credits of Taxes for which the Conexant Tax Group is liable
pursuant to Section 2.02 or Section 3.01(a) or is treated as having paid or
caused to have been paid pursuant to Section 2.02(d), and Mindspeed shall be
entitled to retain, and to receive within ten days after Actually Realized by
the Conexant Tax Group, the portion of all refunds or credits of Taxes for which
the Mindspeed Tax Group is liable pursuant to Section 2.02 or Section 3.01(b) or
is treated as having paid or caused to have been paid pursuant to Section
2.02(d). The amount of any refund or credit of Taxes to which Conexant or
Mindspeed is entitled to retain or receive pursuant to the foregoing sentence
shall be reduced to take account of any Taxes incurred by the Mindspeed Tax
Group, in the case of a refund or credit to which Conexant is entitled, or the
Conexant Tax Group, in the case of a refund or credit to which Mindspeed is
entitled, upon the receipt of such refund or credit.
(b) CARRYBACKS. Unless the parties otherwise agree in writing,
Mindspeed shall elect and shall cause each member of the Mindspeed Tax Group to
elect, where permitted by law, to carry forward any net operating loss, net
capital loss, charitable contribution or other item arising after the
Distribution Date that could, in the absence of such election, be carried back
to a Pre-Distribution Taxable Period. Except as otherwise provided in this
Agreement, notwithstanding the
13
provisions of Section 2.03(a), (i) any refund or credit of Taxes resulting from
the carryback of any item of Taxes attributable to the Mindspeed Tax Group
arising in a Post-Tax Indemnification Period to a Tax Indemnification Period
shall be for the account and benefit of the Mindspeed Tax Group, (ii) any refund
or credit of Taxes resulting from the carryback of any item of Taxes
attributable to the Conexant Tax Group arising in a Post-Tax Indemnification
Period to a Tax Indemnification Period shall be for the account and benefit of
the Conexant Tax Group, and (iii) any refund or credit of Taxes resulting from a
carryback of any item of federal Taxes attributable to the Conexant/Mindspeed
Tax Group (including derivative state and local refunds or credits) shall be for
the account and benefit of the Conexant Tax Group.
(c) REFUND CLAIMS. Conexant shall be permitted to file at Conexant's
sole expense, and Mindspeed shall reasonably cooperate with Conexant in
connection with, any claims for refund of Taxes to which Conexant is entitled
pursuant to this Section 2.03 or any other provision of this Agreement. Conexant
shall reimburse Mindspeed for any reasonable out-of-pocket costs and expenses
incurred by any member of the Mindspeed Tax Group in connection with such
cooperation. Mindspeed shall be permitted to file at Mindspeed's sole expense,
and Conexant shall reasonably cooperate with Mindspeed in connection with, any
claims for refunds of Taxes to which Mindspeed is entitled pursuant to this
Section 2.03 or any other provision of this Agreement. Mindspeed shall reimburse
Conexant for any reasonable out-of-pocket costs and expenses incurred by any
member of the Conexant Tax Group in connection with such cooperation.
SECTION 2.04 ALLOCATION OF STRADDLE PERIOD TAXES. In the case of any
Straddle Period:
(a) PERIODIC TAXES. (i) The periodic Taxes of a member of the
Conexant Tax Group or the Mindspeed Tax Group or its business, assets or
activities that are not based on income or receipts (e.g., property Taxes) for
the portion of any Straddle Period ending on the Distribution Date shall be
computed based on the ratio of the number of days in such portion of the
Straddle Period and the number of days in the entire taxable period; and (ii)
the periodic taxes of a member of the Conexant Tax Group or the Mindspeed Tax
Group or its business, assets or activities that are not based on income or
receipts for the portion of any Straddle Period beginning on the day after the
Distribution Date shall be computed based on the ratio of the number of days in
such portion of the Straddle Period and the number of days in the entire taxable
period.
(b) NON-PERIODIC TAXES. (i) The Taxes of a member of the Conexant
Tax Group or the Mindspeed Tax Group or its business, assets or activities for
that portion of any Straddle Period ending on the Distribution Date (other than
14
Taxes described in Section 2.04(a) above), shall be computed on a
"closing-of-the-books" basis as if such taxable period ended as of the close of
business on the Distribution Date, and, in the case of any Taxes of a member of
the Conexant Tax Group or the Mindspeed Tax Group or its business, assets or
activities with respect to any equity interest in any partnership or other
"flowthrough" entity, as if the taxable period of such partnership or other
"flowthrough" entity ended on the Distribution Date; and (ii) the Taxes of a
member of the Conexant Tax Group or the Mindspeed Tax Group or its business,
assets or activities for that portion of any Straddle Period beginning after the
Distribution Date (other than Taxes described in Section 2.04(a) above), shall
be computed on a "closing-of-the-books" basis as if such taxable period began on
the day after the Distribution Date, and, in the case of any Taxes of a member
of the Conexant Tax Group or the Mindspeed Tax Group or its business, assets or
activities with respect to any equity interest in any partnership or other
"flowthrough" entity, as if the taxable period of such partnership or other
"flowthrough" entity began as of the day after the Distribution Date.
(c) The Taxes of the Conexant Tax Group and the Mindspeed Tax Group
with respect to any Tax Return for a Straddle Period which includes a member of
each of the Conexant Tax Group and the Mindspeed Tax Group or their respective
businesses, assets or activities shall be allocated between the Conexant Tax
Group, on the one hand, and the Mindspeed Tax Group, on the other hand,
determined in a manner analogous to that set forth in Treasury Regulation
Section 1.1552-1(a)(2).
ARTICLE III
TAX INDEMNIFICATION; TAX CONTESTS
SECTION 3.01 INDEMNIFICATION.
(a) CONEXANT INDEMNIFICATION. Subject to Section 3.01(b) and Section
3.02, Conexant shall indemnify, defend and hold harmless each member of the
Mindspeed Tax Group and each of their respective shareowners, directors,
officers, employees and agents and each of the heirs, executors, successors and
assigns of any of the foregoing from and against:
(i) all Taxes of the Conexant Tax Group;
(ii) all Taxes of the Mindspeed Tax Group for all Pre-Distribution
Taxable Periods and all Straddle Periods for which Conexant is liable pursuant
to Section 2.02 or 3.02 other than (A) any Taxes specified on Schedule 2.02(g)
and (B) any employment Taxes attributable to (I) any employee of the Mindspeed
Tax Group
15
on the day following the Distribution Date or (II) any individual who was
neither an employee of the Mindspeed Tax Group or the Conexant Tax Group on the
day following the Distribution Date but whose most recent employment prior to
the Distribution Date with any member of the Mindspeed Tax Group or the Conexant
Tax Group was more closely associated with the Mindspeed Business rather than
the Broadband Business or some other business;
(iii) all liability as a result of Treasury Regulation Section
1.1502-6(a) (which imposes several liability on members of an affiliated group
that file a U.S. federal consolidated Income Tax return) or comparable U.S.
state or local provision for Income Taxes of any person which is or has ever
been affiliated with any member of the Conexant/Mindspeed Tax Group or with
which any member of the Conexant/Mindspeed Tax Group joins or has ever joined
(or is or has ever been required to join) in filing any consolidated, combined
or unitary Income Tax Return for any Tax period ending on or before or including
the Distribution Date except to the extent the Mindspeed Tax Group is liable for
such Taxes pursuant to Section 2.02 or 3.02;
(iv) all Taxes for any Tax period (whether beginning before, on or
after the Distribution Date) that would not have been payable but for the breach
by any member of the Conexant Tax Group of any representation, warranty,
covenant or obligation under this Agreement;
(v) all liability for a breach by any member of the Conexant Tax
Group of any representation, warranty, covenant or obligation under this
Agreement;
(vi) all Taxes imposed in connection with the transactions
contemplated by the Separation Agreements or any other agreement entered into
for the purpose of implementing the Distribution other than any transaction
specified on Schedule 1.01(A);
(vii) all Taxes for which Conexant is liable pursuant to Section
3.02; and
(viii) all liability for any reasonable legal, accounting,
appraisal, consulting or similar fees and expenses relating to the foregoing.
Notwithstanding the foregoing and subject to Section 3.01(b) and Section 3.02,
Conexant shall not indemnify, defend or hold harmless any member of the
Mindspeed Tax Group from any liability for Taxes attributable to any action
(including the making of an election under Section 338 of the Code) taken by any
member of the Mindspeed Tax Group after the Distribution (other than any such
action expressly
16
required or otherwise expressly contemplated by the Separation Agreements or any
other agreement entered into for the purpose of implementing the Distribution or
taken in the ordinary course of business) (a "POST-DISTRIBUTION TAX ACT").
(b) MINDSPEED INDEMNIFICATION. Mindspeed shall be liable for, and
shall indemnify, defend and hold harmless each member of the Conexant Tax Group
and each of the respective shareowners, directors, officers, employees and
agents and each of the heirs, executors, successors and assigns of any of the
foregoing from and against:
(i) all Taxes of any member of the Mindspeed Tax Group (other than
Taxes for which Conexant provides indemnification pursuant to Section 3.01(a));
(ii) all Taxes for any Tax period (whether beginning before, on or
after the Distribution Date) that would not have been payable but for the breach
by any member of the Mindspeed Tax Group of any representation, warranty,
covenant or obligation under this Agreement or that arise in connection with a
transaction specified in Schedule 1.01(A);
(iii) all liability for a breach by any member of the Mindspeed Tax
Group of any representation, warranty, covenant or obligation under this
Agreement;
(iv) all Taxes for which Mindspeed is liable pursuant to Section
3.02;
(v) all Taxes attributable to a Post-Distribution Tax Act; and
(vi) all liability for any reasonable legal, accounting, appraisal,
consulting or similar fees and expenses relating to the foregoing.
SECTION 3.02 MINDSPEED TAX ACTS
(a) Notwithstanding Section 3.01, Mindspeed agrees to indemnify,
defend and hold harmless each member of the Conexant Tax Group and each of the
respective shareowners, directors, officers, employees and agents and each of
the heirs, executors, successors and assigns of any of the foregoing from and
against any Taxes resulting from any Mindspeed Tax Act. A Mindspeed Tax Act
shall mean any action specified on Schedule 3.02(a) attached hereto.
(b) Mindspeed shall, and shall cause each member of the Mindspeed
Tax Group to, comply with and take no action inconsistent with the Mindspeed Tax
Representation Letter, unless, pursuant to a favorable ruling letter
17
obtained from the IRS which is satisfactory to Conexant or the advice of
Xxxxxxxxxx & Xxxxx LLP or other nationally recognized tax counsel to Conexant,
which advice shall be satisfactory to Conexant, such act or omission would not
adversely affect the U.S. federal Income Tax consequences of the Distribution to
Conexant or the shareowners of Conexant. Notwithstanding Sections 3.01(b)(iii),
3.01(b)(iv), 3.01(b)(vi) and 3.01(b)(vii), the parties intend that the sole
remedy for breach of the covenants contained in this Section 3.02(b) shall be as
set forth in Section 3.02(a).
(c) Notwithstanding the foregoing, a Mindspeed Tax Act shall not
include any transaction or action specifically disclosed or specifically
described in any of the Separation Agreements or, except as specifically set
forth in Schedule 3.01 occurring on or prior to the Distribution Date, any
action taken on or prior to the Distribution Date. A Mindspeed Tax Act shall not
include any action on the part of any member of the Conexant Tax Group.
(d) Conexant agrees to indemnify, defend and hold harmless each
member of the Mindspeed Tax Group and each of the respective shareowners,
directors, officers, employees and agents and each of the heirs, executors,
successors and assigns of any of the foregoing from and against any Taxes
resulting from any transaction undertaken in connection with the formation of
Mindspeed and the contribution of assets to Mindspeed.
SECTION 3.03 NOTICE OF INDEMNITY. Whenever a party hereto
(hereinafter an "INDEMNITEE") becomes aware of the existence of an issue raised
by any Tax Authority which could reasonably be expected to result in a
determination that would increase the liability for any Tax of the other party
hereto or any member of its Tax Group for any Tax period or require a payment
hereunder by the other party (hereinafter an "INDEMNITY ISSUE"), the Indemnitee
shall in good faith promptly give notice to such other party (hereinafter the
"INDEMNITOR") of such Indemnity Issue. The failure of the Indemnitee to give
such notice shall not relieve the Indemnitor of its obligations under this
Agreement, except to the extent such Indemnitor or a member of its Tax Group is
actually prejudiced by such failure to give notice.
SECTION 3.04 PAYMENTS.
(a) TIMING ADJUSTMENTS.
(i) TIMING DIFFERENCES. If a Tax audit proceeding or an amendment of
a Tax Return results in a Timing Difference, and such Timing Difference results
in a decrease in an indemnity obligation Conexant has or would otherwise have
under Section 3.01(a) and/or an increase in the amount of a Tax
18
refund or credit to which Conexant is entitled under Section 2.03, then in each
Post-Tax Indemnification Period in which the Mindspeed Tax Group Actually
Realizes an Income Tax Detriment, Conexant shall pay to Mindspeed an amount
equal to such Income Tax Detriment; provided, however, that the aggregate
payments which Conexant shall be required to make under this Section 3.04(a)(i)
with respect to any Timing Difference shall not exceed the aggregate amount of
the Income Tax Benefits realized by the Conexant Tax Group for all taxable
periods and the Mindspeed Tax Group for all Tax Indemnification Periods as a
result of such Timing Difference. Conexant shall make all such payments within
ten days after Mindspeed notifies Conexant that the relevant Income Tax
Detriment has been Actually Realized.
(ii) REVERSE TIMING DIFFERENCES. If a Tax audit proceeding or an
amendment to a Tax Return results in a Reverse Timing Difference, and such
Reverse Timing Difference results in an increase in an indemnity payment
obligation of Conexant under Section 3.01(a) and/or a decrease in the amount of
a Tax refund or credit to which Conexant is or would otherwise be entitled under
Section 2.03, then in each Post-Tax Indemnification Period in which the
Mindspeed Tax Group Actually Realizes an Income Tax Benefit, Mindspeed shall pay
to Conexant within ten days after Mindspeed has Actually Realized such Income
Tax Benefit an amount equal to such Income Tax Benefit, provided, however, that
the aggregate payments which Mindspeed shall be required to make under this
Section 3.04(a)(ii) with respect to Reverse Timing Differences shall not exceed
the aggregate amount of the Income Tax Detriments realized by the Mindspeed Tax
Group and the Conexant Tax Group for all Tax Indemnification Periods as a result
of such Reverse Timing Difference.
(b) TIME FOR PAYMENT. Except as otherwise provided in this Section
3.04(b), any indemnity payment required to be made pursuant to this Agreement
shall be paid within thirty days after the indemnified party makes written
demand upon the indemnifying party, provided that in no event shall such payment
be required to be made earlier than five (5) Business Days prior to the date on
which the relevant Taxes (including estimated Taxes) are required to be paid (or
would be required to be paid if no such Taxes are due) to the relevant Tax
Authority. Notwithstanding any other provision in this Agreement, to simplify
the administration of this Agreement, the payment of any amount less than
$100,000 required to be made pursuant to this Agreement by one party hereto to
another party hereto need not be made to such other party prior to thirty days
following the later of (i) the close of the calendar quarter during which such
payment obligation arose and (ii) the day during such calendar quarter when the
aggregate amount of all such less than $100,000 payment obligations arising
during such calendar quarter exceeds $250,000.
19
(c) PAYMENTS NET OF TAXES AND TAX BENEFITS. The amount of any
payment under this Agreement shall be (i) reduced to take into account any net
Tax benefit realized by the recipient's Tax Group arising from the incurrence or
payment by such recipient's Tax Group of any amount in respect of which such
payment is made and (ii) increased to take into account any net Tax cost
incurred by the recipient's Tax Group as a result of the receipt or accrual of
payments hereunder (grossed-up for such increase), in each case determined by
treating the recipient as recognizing all other items of income, gain, loss,
deduction or credit before recognizing any item arising from the receipt of
accrual of any payment hereunder. Except as otherwise provided in this Agreement
or unless the parties otherwise agree to an alternative method for determining
the present value of any such anticipated Tax benefit or Tax cost, any payment
hereunder shall initially be made without regard to this section and shall be
increased or reduced to reflect any such net Tax cost (including gross-up) or
net Tax benefit only after the recipient's Tax Group has Actually Realized such
Tax cost or Tax benefit.
(d) RIGHT TO OFFSET. Any party making a payment under this Agreement
shall have the right to reduce any such payment by any undisputed amounts owed
to it by the other party to this Agreement.
(e) CHARACTERIZATION OF PAYMENTS. It is the intention of the parties
to this Agreement that payments made pursuant to this Agreement are to be
treated as relating back to the Distribution as an adjustment to capital (i.e.,
capital contribution or distribution), and the parties shall not take any
position inconsistent with such intention before any Tax Authority, except to
the extent that a final determination (as defined in Section 1313 of the Code)
with respect to the recipient party causes any such payment not to be so
treated.
SECTION 3.05 TAX CONTESTS. The Indemnitor and its representatives,
at the Indemnitor's expense, shall be entitled to participate (a) in all
conferences, meetings and proceedings with any Tax Authority, the subject matter
of which is or includes an Indemnity Issue and (b) in all appearances before any
court, the subject matter of which is or includes an Indemnity Issue. The party
who has responsibility for filing the Tax Return under this Agreement (the
"RESPONSIBLE PARTY") with respect to which there could be an increase in
liability for any Tax or with respect to which a payment could be required
hereunder shall have the right to decide as between the parties hereto how such
matter is to be dealt with and finally resolved with the appropriate Tax
Authority and shall control all audits and similar
20
proceedings. If no Tax Return is or was required to be filed in respect of an
Indemnity Issue, the Indemnitor shall be treated as the Responsible Party with
respect thereto. The Responsible Party agrees to cooperate in the settlement of
any Indemnity Issue with the other party and to take such other party's
interests into account.
ARTICLE IV
OPTIONS; COMPENSATION PAYMENTS;
INTEREST CHARGE FOR LATE PAYMENTS;
CURRENCY CALCULATIONS; EFFECTIVE TIME OF TRANSACTIONS
SECTION 4.01 STOCK OPTIONS; RESTRICTED SHARES.
(a) STOCK OPTION ADJUSTMENTS. Conexant Common Stock Options
outstanding at the time of the Distribution will be adjusted in accordance with
the terms of the Employee Matters Agreement. Conexant Restricted Shares
outstanding at the time of the Distribution will be adjusted in accordance with
the terms of the underlying plan and award for such Conexant Restricted Shares
and the Distribution Agreement.
(b) TAX DEDUCTIONS. Notwithstanding anything to the contrary in this
Agreement, unless the IRS issues a contrary private letter ruling to Conexant or
Mindspeed, or Conexant and Mindspeed otherwise agree in writing, (i) the
Conexant Tax Group (and not the Mindspeed Tax Group) shall claim any
Post-Distribution Date Tax deductions in respect of Conexant Common Stock
Options exercised by, or Conexant Restricted Shares held by, Conexant Group
Employees and Former Employees, (ii) the Conexant Tax Group (and not the
Mindspeed Tax Group) shall claim any Post-Distribution Date Tax deductions in
respect of Mindspeed Common Stock Options exercised by, or Mindspeed Restricted
Shares held by, Conexant Group Employees and Former Employees and Conexant shall
pay to Mindspeed the amount received as a result of any Tax benefit realized in
respect of such Tax deductions within ten days after such amount is received by
Conexant, (iii) the Mindspeed Tax Group (and not the Conexant Tax Group) shall
claim any Post-Distribution Date Tax deductions in respect of Conexant Common
Stock Options exercised by, or Conexant Restricted Shares held by, Mindspeed
Group Employees and Former Employees and Mindspeed shall pay to Conexant the
amount received as a result of any Tax benefit realized in respect of such Tax
deductions within ten days after such amount is received by Mindspeed, and (iv)
the Mindspeed Tax Group (and not the Conexant Tax Group) shall claim the
Post-Distribution Date Tax deductions in respect of the Mindspeed Common Stock
Options exercised by, or
21
Mindspeed Restricted Shares held by, Mindspeed Group Employees and Former
Employees. In the case of Skyworks stock options and Skyworks restricted stock
held by Mindspeed Group Employees and Former Employees, to the extent the
allocation agreement between Conexant and Skyworks dated as of June 25, 2002
allocates the Tax deduction to the employer corporation, Mindspeed shall,
within ten days after any Tax refund or credit arising in respect of the Tax
deduction with respect to such stock options and restricted stock is Actually
Realized by Mindspeed, pay such amount to Skyworks.
(c) NOTICES, WITHHOLDING, REPORTING.
(i) Conexant shall promptly notify Mindspeed of any
post-Distribution Date event giving rise to income to any Mindspeed Group
Employees and Former Employees in connection with the Conexant Common Stock
Options and Conexant Restricted Shares and, if required by law, Mindspeed shall
withhold applicable Taxes and satisfy applicable Tax reporting obligations in
connection therewith. Conexant shall within ten days of demand thereof reimburse
Mindspeed for all reasonable out-of-pocket expenses incurred in connection with
the Conexant Common Stock Options and Conexant Restricted Shares, including with
respect to incremental Tax reporting obligations and any incremental employment
Tax obligations; provided that Mindspeed shall use reasonable efforts to collect
any such amounts required to be paid by Mindspeed Group Employees and Former
Employees from such Mindspeed Group Employees and Former Employees.
(ii) Mindspeed shall promptly notify Conexant of any
post-Distribution Date event giving rise to income to any non-Mindspeed Group
Employees and Former Employees in connection with the Mindspeed Common Stock
Options and Mindspeed Restricted Shares and, if required by law, Conexant shall
withhold applicable Taxes and satisfy applicable Tax reporting obligations in
connection therewith. Mindspeed shall within ten days of demand thereof
reimburse Conexant for all reasonable out-of-pocket expenses incurred in
connection with the Mindspeed Common Stock Options and Mindspeed Restricted
Shares, including with respect to incremental Tax reporting obligations and any
incremental employment Tax obligations; provided that Conexant shall use
reasonable efforts to collect any such amounts required to be paid by
non-Mindspeed Group Employees and Former Employees from such non-Mindspeed Group
Employees and Former Employees.
(d) TAX AUDIT ADJUSTMENTS. Notwithstanding the provisions of Section
4.01(b), in the event a Tax audit proceeding shall determine (by settlement or
otherwise), or the parties otherwise determine pursuant to Section 4.03, that
all or a portion of the Tax deductions in respect of Conexant Common Stock
Options and Conexant Restricted Shares or Mindspeed Common Stock Options and
Mindspeed Restricted Shares should have been claimed by the Mindspeed Tax Group
or the Conexant Tax Group, respectively, the Mindspeed Tax Group or the Conexant
Tax Group, respectively, shall claim such Tax deductions (by an amended Tax
Return or otherwise) and shall pay to Conexant or Mindspeed, as the case may be,
the amount of any Tax refund or credit arising in respect of such Tax deduction
within ten days
22
after such Tax refund or credit is Actually Realized by the Mindspeed Tax Group
or the Conexant Tax Group, as the case may be.
(e) STATUS OF DIRECTORS. For purposes of this Section 4.01 (except
as it relates to employment and withholding Taxes), (i) Conexant or Mindspeed
Common Stock Options and Restricted Shares held by present or former
non-employee members of the Conexant Board of Directors shall be treated as held
by present or former employees of Conexant, (ii) Conexant or Mindspeed Common
Stock Options and Restricted Shares held by present or former non-employee
members of the Mindspeed Board of Directors shall be treated as held by present
or former employees of Mindspeed, and (iii) notwithstanding (i) or (ii) above,
Conexant or Mindspeed Common Stock Options and Restricted Shares held by
individuals who, as of the Distribution Date, were both non-employee members of
the Conexant Board of Directors and non-employee members of the Mindspeed Board
of Directors shall be treated as (A) employees of Conexant with respect to
Conexant Common Stock Options exercised by, or Conexant Restricted Shares held
by, such individuals and (B) employees of Mindspeed with respect to Mindspeed
Common Stock Options exercised by, or Mindspeed Restricted Shares held by, such
individuals.
SECTION 4.02 COMPENSATION PAYMENTS.
(a) TAX DEDUCTIONS. Notwithstanding anything to the contrary in this
Agreement, unless Conexant and Mindspeed otherwise agree in writing, (i) the
Boeing Tax Group (and not the Conexant Tax Group or the Mindspeed Tax Group)
shall claim the Post-Distribution Date Tax deductions in respect of Compensation
Payments paid to Mindspeed Group Employees and Former Employees who ceased
employment on or before December 6, 1996 and Conexant shall pay to Mindspeed the
amount received from Rockwell as a result of any Tax benefit realized in respect
of such Tax deductions within ten days after such amount is received by
Conexant, (ii) the Rockwell Tax Group (and not the Conexant Tax Group or the
Mindspeed Tax Group) shall claim the Post-Distribution Date Tax deductions in
respect of Compensation Payments paid by the Rockwell Tax Group to Mindspeed
Group Employees and Former Employers; (iii) the Mindspeed Tax Group (and not the
Conexant Tax Group) shall claim the Post-Distribution Date Tax deductions in
respect of Compensation Payments paid by the Mindspeed Tax Group to all other
Mindspeed Group Employees and Former Employees, and (iv) the Conexant Tax Group
(and not the Mindspeed Tax Group) shall claim the Post-Distribution Date Tax
deductions in respect of Compensation Payments paid by the Conexant Tax Group to
all other Mindspeed Group Employees and Former Employees.
(b) NOTICES, WITHHOLDING, REPORTING. The party responsible for
making the Compensation Payments pursuant to the Employee Matters Agreement
23
shall withhold applicable Taxes and satisfy applicable Tax reporting obligations
in connection with the Compensation Payments made to all Mindspeed Group
Employees and Former Employees.
(c) TAX AUDIT ADJUSTMENTS. Notwithstanding the provisions of Section
4.02(a), in the event a Tax audit proceeding shall determine (by settlement or
otherwise), or the parties otherwise determine pursuant to Section 4.03, that
all or a portion of the Tax deductions in respect of Compensation Payments paid
to Mindspeed Group Employees and Former Employees was not available to the party
claiming the Tax deduction, then the appropriate party shall claim such Tax
deductions (by an amended Tax Return or otherwise) and shall pay to the party
which had previously claimed such Tax deduction, within ten days after such Tax
deduction has been Actually Realized by the such appropriate party, the amount
of the resulting Tax benefit to such appropriate party.
SECTION 4.03 CHANGE IN LAW. Notwithstanding the agreement with
respect to reporting of Tax items and the claiming of the deductions set forth
in Article 4 of this Agreement, neither the Mindspeed Tax Group nor the Conexant
Tax Group shall have any obligation to report any such Tax items or claim such
deductions as set forth in such Article in the event that either such party
determines, based on an opinion of nationally recognized tax counsel, which
opinion shall be satisfactory to the other party, that there is no substantial
authority to support reporting such Tax items or claiming such deductions on a
Tax Return filed by such party as a result of a change in or amendment to any
law or regulation, or any change in the official interpretation thereof,
effective or occurring after the date of this Agreement, and such Tax Group
provides prompt notice to the other Tax Group of any such determination.
SECTION 4.04 INTEREST CHARGE FOR LATE PAYMENTS. Any amount due and
owing by one party to the other party pursuant to this Agreement that is not
paid when due shall bear interest from the due date thereof until paid at a rate
equal to the JPMorgan Chase Bank base rate in effect from time to time during
such period plus 1%.
SECTION 4.05 CURRENCY CALCULATIONS. All currency calculations shall
be made in accordance with Section 7.09 of the Distribution Agreement.
SECTION 4.06 EFFECTIVE TIME OF TRANSACTION. Conexant and Mindspeed
agree that any transaction that, pursuant to the Distribution Agreement, is
expressly effective immediately after the Time of Distribution shall be treated
for federal Income Tax purposes as occurring at the beginning of the day
following the Distribution Date.
24
ARTICLE V
COOPERATION AND EXCHANGE OF INFORMATION
SECTION 5.01 INCONSISTENT ACTIONS. Each party to this Agreement
agrees (i) to, and to cause each of the relevant members of its Tax Group to,
report the Distribution as a transaction described in Section 368(a)(1)(D) of
the Code on all Tax Returns and other filings, (ii) to use its best efforts to
ensure that the Distribution receives such treatment for U.S. federal Income Tax
purposes and (iii) that, unless it has obtained the prior written consent of the
other party, it (and the members of its Tax Group) shall not take any action
inconsistent with, or fail to take any action required by, the Separation
Agreements.
SECTION 5.02 [INTENTIONALLY OMITTED].
SECTION 5.03 [INTENTIONALLY OMITTED].
SECTION 5.04 COOPERATION AND EXCHANGE OF INFORMATION. Each party
hereto agrees to provide, and to cause each member of its Tax Group to provide,
such cooperation and information as such other party shall request, on a timely
basis, in connection with the preparation or filing of any Tax Return or claim
for Tax refund not inconsistent with this Agreement or in conducting any Tax
audit, Tax dispute, or otherwise in respect of Taxes or to carry out the
provisions of this Agreement. To the extent necessary to carry out the purposes
of this Agreement and subject to the other provisions of this Agreement, such
cooperation and information shall include without limitation the non-exclusive
designation of an officer of Conexant as an officer of Mindspeed and each of its
affiliates (for the purpose of signing Tax Returns, cashing refund checks,
pursuing refund claims, dealing with Tax Authorities and defending audits);
promptly forwarding to the other party, where relevant, copies of appropriate
notices and forms or other communications received from or sent to any Tax
Authority which relate to the Tax Indemnification Period; providing copies of
all relevant Tax Returns for the Tax Indemnification Period, together with
accompanying schedules and related workpapers, documents relating to rulings or
other determinations by Tax Authorities, including without limitation, foreign
Tax Authorities, and records concerning the ownership and Tax basis of property,
which either party may possess; and making its employees involved in the
research and development process available to the other party and having such
employees provide such assistance as the other party may require for such
purposes, provided, however, that neither party shall be obligated to provide
the other party Tax Returns, documentation or other information of a proprietary
or confidential nature for purposes of verifying any calculation, and provided
further, that in any such case where one party does not provide the other party
with Tax Returns, documentation or
25
information because it is proprietary or confidential, both parties shall
cooperate in developing mutually acceptable procedures including retaining a
mutually agreeable accounting firm to review such Tax Returns, documentation or
information for purposes of verifying such calculation. Subject to the rights of
the Mindspeed Tax Group under the other provisions of this Agreement, such
officer shall have the authority to execute powers of attorney (including Form
2848) on behalf of each member of the Mindspeed Tax Group with respect to Tax
Returns for the Tax Indemnification Period. Each party to this Agreement shall
make, or shall cause its affiliates to make, its employees and facilities
available on a mutually convenient basis to provide an explanation of any
documents or information provided hereunder.
SECTION 5.05 TAX RECORDS.
(a) Conexant and Mindspeed agree to (and to cause each member of
their respective Tax Group to) (i) retain all Tax Returns, related schedules and
workpapers, and all material records and other documents as required under
Section 6001 of the Code and the regulations promulgated thereunder relating
thereto existing on the date hereof or created through the Distribution Date,
for a period of at least ten years following the Distribution Date and (ii)
allow the party to this Agreement, at times and dates reasonably acceptable to
the retaining party, to inspect, review and make copies of such records, as
Conexant and Mindspeed may reasonably deem necessary or appropriate from time to
time. In addition, after the expiration of such ten-year period, such Tax
Returns, related schedules and workpapers, and material records shall not be
destroyed or otherwise disposed of at any time, unless, prior to such
destruction or disposal, (A) the party proposing to destroy or otherwise dispose
of such records shall provide no less than 30 days' prior written notice to the
other party, specifying in reasonable detail the records proposed to be
destroyed or disposed of and (B) if a recipient of such notice shall request in
writing prior to the scheduled date for such destruction or disposal that any of
the records proposed to be destroyed or disposed of be delivered to such
requesting party, the party proposing the destruction or disposal shall promptly
arrange for the delivery of such requested records at the expense of the party
requesting such records.
(b) Notwithstanding anything in this Agreement to the contrary, if
any party fails to comply with the requirements of Section 5.05(a) hereof, the
party failing so to comply shall be liable for, and shall hold the other party,
harmless from, any Taxes (including without limitation, penalties for failure to
comply with the record retention requirements of the Code) and other costs
resulting from such party's failure to comply.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01 ENTIRE AGREEMENT; CONSTRUCTION. This Agreement, the
Distribution Agreement, the other Separation Agreements and the Financing
Agreements, including any annexes, schedules and exhibits hereto or thereto, and
other agreements and documents referred to herein and therein, will together
constitute the entire agreement between the parties with respect to the subject
matter hereof and thereof and will supersede all prior negotiations, agreements
and understandings of the parties of any nature, whether oral or written, with
respect to such subject matter. Notwithstanding any other provisions in the
Separation Agreements to the contrary, in the event and to the extent that there
is a conflict relating to Taxes between the provisions of this Agreement and the
provisions of the Distribution Agreement or any other Separation Agreement, the
provisions of this Agreement will control.
SECTION 6.02 EFFECTIVENESS. All covenants and agreements of the
parties contained in this Agreement shall be subject to and conditioned upon the
Distribution becoming effective.
SECTION 6.03 SURVIVAL OF AGREEMENTS. Except as otherwise
contemplated by the Separation Agreements, all covenants and agreements of the
parties contained in this Agreement will remain in full force and effect and
survive the Time of Distribution.
SECTION 6.04 GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the internal laws of the State of Delaware
applicable to contracts made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
SECTION 6.05 NOTICES. All notices, requests, claims, demands and
other communications required or permitted to be given hereunder will be in
writing and will be delivered by hand, telecopied, e-mailed or sent, postage
prepaid, by registered, certified or express mail or reputable overnight courier
service and will be deemed given when so delivered by hand or telecopied, when
e-mail confirmation is received if delivered by e-mail, or three (3) Business
Days after being so mailed (one (1) Business Day in the case of express mail or
overnight courier service). All such notices, requests, claims, demands and
other communications will be addressed as set forth in Section 7.04 of the
Distribution Agreement, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice.
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SECTION 6.06 AMENDMENTS. This Agreement may not be amended, modified
or supplemented except by a written agreement executed by Conexant and
Mindspeed.
SECTION 6.07 SUCCESSORS AND ASSIGNS. Neither party to this Agreement
will convey, assign or otherwise transfer any of its rights or obligations under
this Agreement without the prior written consent of the other party in its sole
and absolute discretion other than as expressly provided herein, any party may
(without obtaining any consent) assign any of its rights hereunder to a
successor to all or any part of its business. Any such conveyance, assignment or
transfer requiring the prior written consent of another party which is made
without such consent will be void ab initio. No assignment of this Agreement
will relieve the assigning party of its obligations hereunder.
SECTION 6.08 CAPTIONS; CURRENCY. The article, section and paragraph
captions herein and the table of contents hereto are for convenience of
reference only, do not constitute part of this Agreement and will not be deemed
to limit or otherwise affect any of the provisions hereof. Unless otherwise
specified, all references herein to numbered articles or sections are to
articles and sections of this Agreement and all references herein to schedules
are to schedules to this Agreement. Unless otherwise specified, all references
contained in this Agreement or in any schedule referred to herein to dollars or
"$" shall mean U.S. dollars.
SECTION 6.09 SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, will remain in full force and effect and will in no way be
affected, impaired or invalidated thereby. If the economic or legal substance of
the transactions contemplated hereby is affected in any manner adverse to any
party as a result thereof, the parties will negotiate in good faith in an effort
to agree upon a suitable and equitable substitute provision to effect the
original intent of the parties.
SECTION 6.10 PARTIES IN INTEREST. Except for the provisions of
Article III relating to Tax Indemnification, this Agreement is solely for the
benefit of the parties hereto and the respective members of their Tax Group and
should not be deemed to confer upon third parties (including any employee of
Conexant or Mindspeed or of any Conexant or Mindspeed subsidiary) any remedy,
claim, reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
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SECTION 6.11 SCHEDULES. All schedules attached hereto are hereby
incorporated in and made a part of this Agreement as if set forth in full
herein. Capitalized terms used in the schedules hereto but not otherwise defined
therein will have the respective meanings assigned to such terms in this
Agreement.
SECTION 6.12 TERMINATION. This Agreement may be terminated and the
Distribution abandoned at any time prior to the Distribution Date by and in the
sole discretion of the Conexant Board without the approval of Mindspeed or
Conexant's shareowners. In the event of such termination, neither party will
have any liability of any kind to the other party on account of such
termination.
SECTION 6.13 WAIVERS; REMEDIES. No failure or delay by any party
hereto in exercising any right, power or privilege hereunder will operate as a
waiver thereof, nor will any waiver on the part of any party hereto of any
right, power or privilege hereunder operate as a waiver of any other right,
power or privilege hereunder, nor will any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
Subject to Section 6.17, the rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies which the parties may otherwise
have at law or in equity.
SECTION 6.14 COUNTERPARTS. This Agreement may be executed in
separate counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts will together constitute the same
agreement. This Agreement may be executed and delivered by telecopier with the
same force and effect as if it were a manually executed and delivered
counterpart.
SECTION 6.15 PERFORMANCE. Each party hereto will cause to be
performed, and hereby guarantees the performance of all actions, agreements and
obligations set forth herein to be performed by any subsidiary or any member of
such party's Tax Group.
SECTION 6.16 INTERPRETATION. Any reference to any federal, state,
local, or foreign law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. For the purposes
of this Agreement, (i) words in the singular shall be held to include the plural
and vice versa and words of one gender shall be held to include the other gender
as the context requires, (ii) the terms "hereof ", "herein", and "herewith" and
words of similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole and not to any particular provision of this Agreement
and (iii) the word "including" and words of similar import when used in this
Agreement shall mean "including, without limitation".
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SECTION 6.17 DISPUTE RESOLUTION. Any dispute, claim or controversy
arising out of or relating to any provision of this Agreement or the breach,
performance or validity thereof will be resolved in accordance with the
procedures set forth in Section 7.05 of the Distribution Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties as of the date first
hereinabove written.
CONEXANT SYSTEMS, INC.
By:
-----------------------------
Name:
Title:
MINDSPEED TECHNOLOGIES, INC.
By:
-----------------------------
Name:
Title:
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