Tax Sharing Agreement - Executone Information Services Inc. and Unistar Gaming Corp.
TAX SHARING AGREEMENT
BY AND BETWEEN
EXECUTONE INFORMATION SERVICES, INC.
AND
UNISTAR GAMING CORP.
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TAX SHARING AGREEMENT
This Tax Sharing Agreement (the "Agreement"), dated as of _________
___, 1998, by and between EXECUTONE Information Systems, Inc., a Virginia
corporation ("Executone"), and Unistar Gaming Corp., a Delaware corporation
("Unistar"), is entered into in connection with a Reorganization Agreement (the
"Reorganization Agreement"), dated as of _____________ ___,
1998, by and between such parties.
WHEREAS, Executone, on behalf of itself and its present and future
subsidiaries other than Unistar and its present or future subsidiaries (the
"Executone Group"), and Unistar, on behalf of itself and its present and future
subsidiaries (the "Unistar Group"), have determined that it is necessary and
desirable to provide for allocation between the Executone Group and the Unistar
Group of all responsibilities, liabilities and benefits relating to taxes paid
or payable by either group for all taxable periods, whether beginning before, on
or after the Separation Date, and to provide for certain other matters;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, terms defined in the Reorganization
Agreement or the Share Exchange Agreement, dated August ___, 1998, between
Executone, Unistar and certain holders of Executone preferred stock (the "Share
Exchange Agreement"), but not defined herein shall have the meanings given in
the Reorganization Agreement or the Share Exchange Agreement, as applicable, and
the following terms shall have the following meanings (such meanings to be
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equally applicable to both the singular and plural forms of the terms defined):
Code: the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations issued thereunder.
Consolidated Return Year: with respect to any Unistar Group
member, any period for which it is included in a Consolidated Tax Return.
Consolidated Tax Return: any consolidated Federal Income Tax
Return filed by Executone, and any consolidated, unitary or combined State
Income Tax Return filed by any members of the Executone Group.
Federal Income Taxes: all United States federal income taxes,
and any interest, penalties and additions imposed with respect to such taxes.
[Foreign Income Taxes: all income taxes (and other taxes
measured by net income or net gain) imposed by any country other than the
United States or by any political subdivision of any such country, and any
interest, penalties and additions imposed with respect to such taxes.]
Income Taxes: all Federal Income Taxes, State Income Taxes [and
Foreign Income Taxes].
Post-Separation Period: any taxable period ending after the
Separation Date.
Pre-Separation Period: any taxable period ending on or before
the Separation Date.
Separate Return Tax Liability: the amount of any Income Tax for
which an entity (i) is liable if it files a Separate Tax Return or (ii) would be
liable if it filed a Separate Tax Return for a Consolidated Return Year.
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Separate Tax Return: any Income Tax Return other than a
Consolidated Tax Return.
State Income Taxes: all income taxes (and other taxes measured by
net income or net gain) imposed by any State of the United States (including any
political subdivision thereof) or the District of Columbia, and any interest,
penalties and additions imposed with respect to such taxes.
Tax Benefit: the Tax effect of any loss, deduction, credit or
other item that decreases Taxes paid or payable.
Tax Detriment: the Tax effect of any income, gain, recapture of
credit or other item that increases Taxes paid or payable.
Tax Returns: all returns, declarations, reports, claims for
refund, information returns, statements and other forms required to be filed
with respect to any Taxes, including any schedule or attachment thereto and
any amendments thereof.
Taxes: all taxes, however denominated, imposed by any government
or governmental entity, and any interest, penalties and additions imposed
with respect thereto.
ARTICLE II
FILING OF TAX RETURNS
Section 2.01. Pre-Separation Period Income Tax Returns.
(a) Consolidated Tax Returns. The income and other tax items of
each member of the Unistar Group for any Pre-Separation Period that is a
Consolidated Return Year shall be included in the Consolidated Tax Return.
Executone shall prepare and timely file all Consolidated Tax Returns for such
period.
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(b) Separate Tax Returns. Executone shall prepare and file (or cause
to be filed) any Separate Tax Return of a Unistar Group member due for a
Pre-Separation Period.
(c) Amendments. No Unistar Group member shall file an amended Tax
Return for any Pre-Separation Period without Executone's written consent. With
respect to any return that includes any Unistar Group member and for which
Executone has responsibility under this Section 2.01, Executone shall not file
(or cause to be filed) an amended Tax Return or change any tax accounting method
or election without Unistar's consent (which shall not be unreasonably withheld)
if such action would increase any Tax for which any Unistar Group member is
liable under this Agreement, unless (i) such action is required by law or is
necessary (in Executone's good-faith opinion) to avoid or reduce any penalty or
addition to Tax or (ii) Executone agrees to pay the amount of such increase.
Section 2.02. Post-Separation Income Tax Returns. Unistar shall
prepare and file (or cause to be prepared and filed) all Tax Returns for each
Unistar Group member for Post-Separation Periods. For all Post-Separation
Periods beginning before the Separation Date, each such Tax Return shall be
based on the same tax accounting methods and elections as used by the
appropriate Unistar Group member for the immediately preceding taxable period,
unless otherwise required by law or Executone consents in writing to each change
from such methods and elections.
Section 2.03. Other Tax Returns. All Tax Returns not covered by
Section 2.01 or 2.02 shall be prepared and filed by the corporation upon which
such obligation is imposed by law.
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ARTICLE III
PAYMENT OF TAXES
Section 3.01. Payment of Taxes in General. Except as otherwise
provided in this Article III, Executone shall pay, and shall indemnify and hold
each Unistar Group member harmless from and against, all Taxes attributable to
any member of the Executone Group, whether heretofore or hereafter arising or
incurred. Executone shall be entitled to any reduction in or refund of such
Taxes [(except any reduction in or refund of Taxes resulting from carrybacks of
any Unistar Group member described in Section 3.04)]. Except as otherwise
provided in this Article III, Unistar shall pay, and shall indemnify and hold
each Executone Group member harmless from and against, all Taxes attributable to
any member of the Unistar Group, whether heretofore or hereafter arising or
incurred. Unistar shall be entitled to any reduction in or refund of such Taxes.
If a member of the Executone Group or Unistar Group receives a refund of Taxes
to which the other group is entitled under this Article III, such member shall
remit such refund to the other group by promptly sending such refund to
Executone or Unistar, as appropriate; provided, however, that any amount payable
in respect of any such refund shall be reduced by the amount of any Taxes
incurred, and the present value (based on a discount rate of [6] percent) of any
Taxes to be incurred, by any Executone Group member or Unistar Group member, as
appropriate, as a result of the accrual or receipt of the refund.
Section 3.02. Payment of Certain Income Taxes. Executone shall
charge Unistar for and Unistar shall pay to Executone, upon demand, each Unistar
Group member's Separate Return Tax Liability that is not heretofore paid for any
Pre-Separation Period. Such liability shall include, without limitation, any
alternative minimum tax liability imposed under section 55 of the Code and any
environmental tax liability imposed under section 59A of the Code. To the
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extent not heretofore paid, Executone shall pay to Unistar any Tax Benefit
realized by Executone Group members from the use of losses or deductions of
Unistar Group members for any Pre-Separation Period ending before January 1,
1998 (thus, for example, Executone shall not pay for any such Tax Benefit
relating to any gain or other income arising in connection with the Exchange or
the Rights Offering).
Section 3.03. Adjustments to Tax. Except as otherwise provided
herein, Executone shall be responsible for, and shall indemnify and hold each
Unistar Group member harmless from and against, all adjustments to Taxes
attributable to any Executone Group member, whether heretofore or hereafter
arising or incurred; provided, however, that Executone shall not indemnify or
hold the Unistar Group harmless from any use of or reduction in net operating
losses, other losses or credits as a result of any adjustment to any tax items
of the Executone Group for any taxable period ending after December 31, 1997.
Executone shall be entitled to any Tax Benefit and shall bear any Tax Detriment
resulting from such adjustments [(except adjustments resulting from carrybacks
of any Unistar Group member from a Post-Separation Period)]. If an adjustment to
a tax item attributable to an Executone Group member reduces the Tax liability
of a Unistar Group member, Unistar shall pay promptly to Executone the amount of
the Tax Benefit realized by the Unistar Group. If an adjustment to a tax item
attributable to an Executone Group member for a Pre-Separation Period ending
before January 1, 1998 increases the Tax liability of a Unistar Group member,
Executone shall pay promptly to Unistar the amount of the Tax Detriment realized
by the Unistar Group upon receiving written notification from Unistar of such
amount.
Unistar shall be responsible for, and shall indemnify and hold
harmless each Executone Group member from and against, all adjustments to Taxes
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attributable to any Unistar Group member, whether heretofore or hereafter
arising or incurred. Unistar shall be entitled to any Tax Benefit (except as
otherwise provided herein) and shall bear any Tax Detriment resulting from such
adjustments. If an adjustment to a tax item attributable to any Unistar Group
member reduces the Tax liability of an Executone Group member, Executone shall
(except as otherwise provided herein) promptly pay to Unistar the amount of the
Tax Benefit realized by the Executone Group. If an adjustment to a tax item
attributable to any Unistar Group member increases the Tax liability of an
Executone Group member, Unistar shall promptly pay the amount of the Tax
Detriment incurred by the Executone Group upon receiving written notification
from Executone of such amount.
[Section 3.04. Carrybacks from Post-Separation Periods to
Pre-Separation Periods. Any loss, credit or other item attributable to any
Unistar Group member arising in a Post-Separation Period may be carried back to
a Consolidated Return Period, to the extent and as permitted under applicable
law. Executone shall cooperate with any Unistar Group member to the extent
reasonably necessary (including, without limitation, amending any Tax Return and
filing any claim for refund) for such member to realize the Tax Benefit of
carrying such loss, credit or other item back to such Pre-Separation Period.
Executone shall remit promptly to Unistar any refund or reduction in Tax
resulting from such carryback.]
ARTICLE IV
COOPERATION
Section 4.01. Cooperation in General. Each of Executone and Unistar
agrees to make available to the other party records in its custody and in the
custody of any member of its group, to furnish other information, and otherwise
to cooperate to the extent reasonably required for the filing of Tax Returns and
documents relating to the assets or businesses of such other party.
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Section 4.02. Notice, Defense, and Settlement of Tax Claims. If a
member of the Executone Group or Unistar Group receives written notice of a
deficiency, contest, audit or other proceeding with respect to a Tax liability
for which a member of the other group is liable under this Agreement (including
liability hereunder to indemnify or reimburse a member of the other group), then
the recipient shall notify the other group of such matter by promptly sending
written notice thereof to Executone or Unistar, as appropriate. Executone and
Unistar shall cooperate to contest and defend against any such proposed Tax
liability. The corporation that is legally liable for such Tax liability
(without regard to this Agreement) shall not settle, compromise or otherwise
agree to pay such liability without the consent of the corporation that is
liable for such Tax under this Agreement. Such consent shall not be unreasonably
withheld.
ARTICLE V
COMPLETE AGREEMENT; CONSTRUCTION
This Agreement shall constitute the entire agreement among the
parties with respect to the subject matter hereof and shall supersede all
previous negotiations, commit-ments and writings with respect to such subject
matter.
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IN WITNESS WHEREOF, Executone and Unistar have caused this Agreement
to be duly executed by their respective officers, each of whom is duly
authorized, as of the day and year first above written.
EXECUTONE INFORMATION SYSTEMS, INC.
By: ________________________________
Name: ________________________________
Title:________________________________
UNISTAR GAMING CORP.
By: ________________________________
Name: ________________________________
Title:________________________________