Exhibit 10.39
TAX ALLOCATION AGREEMENT
This agreement (the "Agreement") is entered into as of September 28,
1998 by and between Xxx. Xxxxxx' Holding Company, Inc., a Delaware corporation
("MFH"), and all direct or indirect subsidiaries of MFH as set forth on Schedule
A attached hereto as such Schedule may be amended from time to time (each such
subsidiary is referred to separately as the "Subsidiary" or collectively as the
"Subsidiaries").
Recitals
MFH and each Subsidiary are includible corporations in an affiliated
group of corporations of which MFH is the common parent, all within the meaning
of Section 1504 of the Internal Revenue Code of 1986, as amended (the "Code").
MFH intends to file (i) consolidated Federal income tax returns on
behalf of itself and the other members of the Group (as hereinafter defined) and
(ii) unitary, combined, consolidated or similar state, local and foreign income
tax returns on behalf of it [(self and the other relevant members of the Group.
MFH and the other members of the Group wish to allocate and settle
among themselves the consolidated Federal, and unitary, combined, consolidated
or similar state, local and foreign, income tax liabilities of the Group.
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Accordingly, the parties agree as follows:
1. Definitions. For purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) "Group" means MFH, the Subsidiaries and all other corporations
(whether now existing or hereafter formed or acquired) that at the time (i)
would be entitled or required to join with MFH in filing a consolidated Federal
income tax return or (ii) would be entitled or required to join with MFH in
filing a unitary, combined, consolidated or similar state, local or foreign
income tax return.
(b) "Taxable Period" means, commencing in 1998, any 52/53-week
period ending on the Saturday or Sunday closest to December 31 with respect to
which a consolidated Federal income tax return is filed on behalf of the Group.
(c) "Subsidiary Separate Tax" for any Subsidiary with respect to any
Taxable Period means, subject to the rules set forth in the next succeeding
paragraph and Paragraph 6, a hypothetical Federal income tax liability that the
Subsidiary would have for such Taxable Period determined as if the Subsidiary
had filed its own separate Federal income tax return for such Taxable Period (or
during any Taxable Period prior thereto), and calculated by (i) taking into
account only losses, credits, carryovers of losses and credits from prior or
subsequent Taxable Periods, and other tax attributes of
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the Subsidiary, which attributes are subject to limitations under the Code to
the extent that such attributes would actually be utilized in the determination
of the Subsidiary's Federal income tax if the Subsidiary filed a separate
Federal income tax return for all Taxable Periods relating to the computation,
(ii) imposing a tax on the taxable income of the Subsidiary at a rate equal to
the highest marginal rate of corporate tax specified under the Code and
applicable to that Taxable Period and taking into account minimum tax,
alternative minimum tax and recapture of credits and (iii) employing the methods
and principles of accounting, elections and conventions that are used by the
Group.
For purposes of determining Subsidiary Separate Tax for any
Subsidiary with respect to any Taxable Period, the following special rules shall
apply:
(A) Subsidiary Separate Tax may constitute the combined
returns of certain member sub-groups of the Group, as determined by
MFH in its sole discretion from time to time with respect to any
Taxable Period;
B) Any carryover of loss or credit existing on the first day
of the Taxable Period in which this Agreement is executed that arose
during taxable years in which the Subsidiary was a member of the
Group, will be deemed to be an attribute of MFH for all purposes of
this Agreement (unless deemed otherwise by MFH in its sole and
absolute discretion);
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(B) The Subsidiary's tax basis in stock held by it (including
the triggering of any excess loss account with respect to such stock
under the consolidated return provisions of the Code and regulations
thereunder ("Treasury Regulations")) shall not be affected by the
calculation of hypothetical liability required by this subparagraph
(c); and
(C) MFH may from time to time establish any other special
rules that MFH in its sole and absolute discretion deems necessary
or appropriate to carry out the purposes of this Agreement
(including, without limitation, rules relating to carryovers of
losses and credits).
(d) "Estimated Tax Payments" for any Taxable Period means the
aggregate payments for such Taxable Period provided in Paragraph 5.
(e) "Final Determination" means a closing agreement with the
Internal Revenue Service (the "IRS"), claim for refund which has been allowed,
deficiency notice with respect to which the period for filing a petition with
the Tax Court has expired, or a decision of any court of competent jurisdiction
that is not subject to appeal or the time for appeal of which has expired.
2. Payments by Subsidiary to MFH. For every Taxable Period in which
the Subsidiary Separate Tax exceeds the Estimated Tax Payments or the Subsidiary
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Separate Tax as recomputed according to Paragraph 6 exceeds the Subsidiary
Separate Tax, the Subsidiary shall pay to MFH an amount equal to such excess.
3. Payments by MFH to Subsidiary. For every Taxable Period in which
the Estimated Tax Payments exceed the Subsidiary Separate Tax or the Subsidiary
Separate Tax exceeds the Subsidiary Separate Tax as recomputed according to
Paragraph 6, MFH shall pay to the Subsidiary the amount of such excess.
4. Time and Form of Payment. Payments pursuant to Paragraphs 2 and 3
shall be made by check or wire transfer of funds no later than ten (10) days
prior to the due date of the Group's consolidated Federal income tax return for
the Taxable Period in question, not including extensions. If the due date for
such return is extended, such payments shall be made on an estimated basis and
shall be recalculated no later than ten (10) days prior to the extended due date
for such return, and any difference between such recalculated payments and such
estimated payments shall be paid by check or wire transfer of funds to the party
entitled thereto at the time of such recalculation.
5. Estimated Tax Payments. For every Taxable Period, each Subsidiary
shall pay to MFH (by check or wire transfer of funds) no later than ten (10)
days prior to the fifteenth day of the fourth, sixth, ninth and twelfth months
of such Taxable Period 25%, 50%, 75% and 100%, respectively, of the current
annual estimated Federal
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income taxes (including, without limitation, alternative minimum tax and
superfund tax) that the Subsidiary would be required to pay for such Taxable
Period, less any prior payments for such Taxable Period. Such hypothetical
estimated Federal income tax liability shall be determined in a manner
consistent with Paragraph 1(c) and subject to approval by MFH.
6. Adjustments
(a) Carryback of Losses or Credits. Subject to the special rule in
Paragraph 1(c)(A), in the event that a Subsidiary realizes in any Taxable Period
a loss or credit that would be permitted under applicable provisions of the Code
and Treasury Regulations (taking into account any election under Section
172(b)(3) of the Code) to be carried to one or more Taxable Periods that precede
such Taxable Period if the Subsidiary had filed a separate Federal income tax
return for all such Taxable Periods, the Subsidiary Separate Tax shall be
recomputed for such preceding Taxable Periods to take into account such
carryback and the payments pursuant to Paragraphs 2 and 3 shall be appropriately
adjusted as determined by MFH in its sole and absolute discretion; provided,
however, that no such adjustments to Subsidiary Separate Tax or to the payments
required pursuant to Paragraphs 2 and 3 shall be made with respect to any loss
or credit carried back to a taxable year beginning prior to the Taxable Period
in which
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this Agreement is executed or, if later, a taxable year in which the Subsidiary
was not a member of the Group; and further provided, however, that no carryover
of loss or credit of a Subsidiary will be deemed to be absorbed where such
carryover would otherwise be carried back to a taxable year, beginning before
the Taxable Period in which this Agreement is executed, in which the Subsidiary
was a member of the Group. Any payment from MFH to the Subsidiary required by
reason of such adjustment shall be paid by check or wire transfer of funds
within the earlier of (i) 30 days following MFH's receipt of the related actual
refund from the IRS or (ii) 90 days after the filing of the actual consolidated
Federal income tax return on which such refund is claimed.
(b) Redeterminations of Tax Liability. In the event of any
redetermination of the consolidated Federal income tax liability of the Group
for any Taxable Period as a result of an audit by the IRS, the allowance of a
claim for refund, court determination, or otherwise, the Subsidiary Separate Tax
shall be recomputed for such Taxable Period to take into account such
redetermination in a manner consistent with such revised treatment and the
payments pursuant to Paragraphs 2 and 3 shall be appropriately adjusted by MFH
in its sole and absolute discretion. Any additional payment required to be made
by a party hereto by reason of such adjustment shall be paid by check or wire
transfer of funds within 30 days of the date of a Final Determina-
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tion with respect to such redetermination, or as soon as such adjustment can
practicably be calculated, if later, together with interest for the period and
at the rate provided for in applicable provisions of the Code and, if
applicable, penalties and additions to tax.
(c) Deconsolidation. In the event that a Subsidiary is determined
not to have been properly treated as an includible corporation in the Group with
respect to any Taxable Period, the amount of any payments made under Paragraphs
2, 3 and 5 (taking into account any adjustments pursuant to Paragraphs 6(a) and
(b)) shall be refunded to the party entitled to such net amount within 30 days
of a Final Determination of such deconsolidation, or as soon as the amount to be
refunded can practicably be determined, if later, together with any applicable
interest for the period.
(d) Ceasing to Be a Member of the Group. In the event that a
Subsidiary ceases to be a member of the Group, then, unless MFH in its sole and
absolute discretion agrees otherwise, such Subsidiary shall reimburse MFH to the
extent that the Subsidiary received a payment for (or payments made by it were
reduced by) any carryover of loss or credit that remains an attribute of such
Subsidiary (i.e., that was not actually absorbed by the Group). Unless MFH in
its sole and absolute discretion agrees otherwise, no adjustment to Paragraphs 2
and 3 shall be made in the event that a Subsidiary ceases to be a member of the
Group and thereafter realizes in any taxable
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year a loss or credit that would be permitted under applicable provisions of the
Code and Treasury Regulations to be carried to one or more Taxable Periods of
the Group that precede such taxable year.
7. Filing of Returns, Cooperation; Indemnification
(a) MFH As Agent. Each Subsidiary hereby appoints MFH as its agent
for the purpose of (i) filing such consolidated Federal income tax returns for
the Group as MFH may elect or be required to file, (ii) making any Federal
election (including, without limitation, selecting methods of accounting) or
application or (iii) taking any action in connection therewith on behalf of the
members of the Group. Each Subsidiary hereby consents to the filing of such
returns, the making of such elections and applications and the taking of such
action. Nothing in this Agreement shall be construed as requiring MFH to file a
consolidated Federal income tax return for the Group for any period. Except as
provided in Paragraph 6(b), the actions of MFH pursuant to this Paragraph 7
shall not affect the computation of Subsidiary Separate Tax.
(b) Cooperation. Each Subsidiary shall cooperate with MFH regarding
the application of this Agreement and the filing of any consolidated Federal
income tax returns for the Group by maintaining such books and records and
providing such information as may be necessary or useful for the application of
this Agreement or for the
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timely filing of such returns and by executing any documents and taking any
other action that MFH may reasonably request in connection therewith.
(c) Indemnification. Each Subsidiary will indemnify and hold
harmless MFH from any interest, penalties or additions to tax for any failure to
timely file the consolidated Federal income or estimated tax return of the Group
for any Taxable Period to the extent that such failure is attributable to the
failure of such Subsidiary to make the payments required pursuant to Paragraphs
2, 4 and 5 or to the failure of such Subsidiary to comply with Paragraph 7(b).
8. Resolution of Disputes. Any dispute or ambiguity concerning the
calculation or basis of determination of any payment provided for under this
Agreement, or any dispute or ambiguity concerning any other matter not otherwise
addressed in this Agreement, shall be resolved by MFH in a manner consistent
with the underlying principles of and procedures for allocation of this
Agreement as determined by MFH in its sole and absolute discretion. The judgment
of MFH shall be conclusive and binding upon the parties hereto.
9. Adjudications. In any audit, conference or other proceeding with
the IRS, or in any judicial proceedings, concerning the determination of the
Federal income tax liabilities of the Group or of any of its members (an
"Adjudication"), the Group and
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each of its members shall be represented by persons selected by MFH. Each
Subsidiary shall cooperate with MFH regarding any Adjudication. The settlement
and terms of settlement of any issues relating to an Adjudication shall be in
the sole and absolute discretion of MFH.
10. Binding Effect; Successors. This Agreement shall inure to the
benefit of and be binding upon the parties hereto (including each member of the
Group, whether or not such member was a member of the Group upon the original
execution of this Agreement) and their respective successors and permitted
assigns to the same extent as if such successors or assigns (or such future
members) had been original parties to this Agreement. MFH will use its best
efforts to cause each future member of the Group to assent formally to this
Agreement.
11. Legal and Accounting Fees. Any fees or expenses for legal,
accounting or other professional services rendered in connection with the
preparation of a consolidated Federal income tax return for the Group, the
application of the provisions of this Agreement or any audit, conference or
proceeding of the IRS or judicial proceedings relevant to any determination
required to be made under this Agreement, may be allocated appropriately by and
between MFH and each Subsidiary.
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12. State, Local and Foreign Taxes. The underlying principles of and
procedures for allocation and payment of Federal income tax liabilities and all
of the other provisions of this Agreement (including, without limitation,
Paragraph 7) shall apply in the same general way with respect to state income,
franchise, minimum and estimated taxes where unitary, combined, consolidated or
similar re turns are filed (and, in the sole and absolute discretion of MFH,
local, foreign and other taxes).
13. Effect of Agreement. This Agreement shall determine the rights
and liabilities of MFH and each other member of the Group as to the matters
provided for in this Agreement, whether or not such determination is effective
for purposes of the Treasury Regulations, financial reporting purposes or other
purposes.
14. Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties in respect of the subject matter contained in
this Agreement and supersedes all prior or contemporaneous agreements, promises,
covenants, arrangements, communications, representations or warranties, whether
oral or written, by any party or by any officer, employee or representative of
any party. This Agreement shall not be modified, supplemented or terminated
except by a writing duly signed by each of the parties hereto, and no waiver of
any provision of this Agreement shall be effective unless in a writing duly
signed by the party sought to be bound.
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15. Code References. Any references to Sections of the Code shall be
deemed to refer to any successor provisions of the Code and shall refer to such
Sections or provisions as in effect from time to time.
16. Notices. Any payment, notice, communication or approval required
or permitted to be given under this Agreement shall be deemed to have been duly
given if delivered by hand or deposited in the United States mail, postage
prepaid and sent by certified or registered mail, addressed to a Subsidiary at
the address appearing opposite such Subsidiary's name on Schedule A and, if
addressed to MFH, at:
Xxx. Xxxxxx' Holding Company, Inc.
ATTENTION: Mr. Xxxxxxx Xxxxxx
0000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
17. Third Parties. Except as specifically set forth or referred to
in this Agreement, nothing expressed or implied in this Agreement is intended or
shall be construed to confer upon or give to any person or corporation other
than the parties hereto (and, in accordance with Paragraph 10, their successors
or assigns) any rights or remedies under or by reason of this Agreement.
18. Governing Laws. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to its conflict of laws provisions.
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19. Term. This Agreement shall cease to be effective (i) at such
time as the panics hereto mutually agree in writing or (ii) in the sole
discretion of MFH, upon six months' prior notice to the other parties hereto.
20. Severability. If any provision of this Agreement or the
application thereof to any party is held invalid or unenforceable, the remainder
of this Agreement and the application of such provision to other parties or
circumstances will not be affected thereby, the provisions of this Agreement
being severable in any such instance.
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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The parties hereto have caused this Agreement to be duly executed as
of the date first written above.
XXX. XXXXXX' HOLDING COMPANY, INC.
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Title: Assistant Sec.
----------------------------------
SUBSIDIARIES:
Xxx. Xxxxxx' Original Cookies, Inc.
----------------------------------------
(Name of Subsidiary)
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Title: Assistant Sec.
----------------------------------
All those other Subsidiaries appearing
on Schedule A attached hereto, as such
Schedule may be amended from time to
time.
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SCHEDULE A
TO
TAX ALLOCATION AGREEMENT
DATED AS OF SEPTEMBER 28, 1998
BY AND BETWEEN
XXX. XXXXXX' HOLDING COMPANY, INC. AND
EACH SUBSIDIARY
Subsidiary Address
---------- -------
Xxx. Xxxxxx' Original Cookies, Inc. 0000 X. XXXXXXXXXX XXXX
XXXXX # 000
XXXX XXXX XXXX, XXXX 00000
Great American Cookie Company, Inc. Same as above
The Xxx. Xxxxxx' Brand, Inc. Same as above
Pretzel Time, Inc. Same as above
UVEST Same as above
LV-H&H Same as above
H&M Canada Same as above
Fairfield Foods, Inc. Same as above
Airport Cookies, Inc. Same as above
