Exhibit 10.23
TAX AGREEMENT
TAX AGREEMENT, made and entered into and effective as of the 27th day of
September, 1999 (the "Tax Agreement") by and among HF Holdings, Inc., a Delaware
corporation ("Parent"), and its subsidiaries, including ICON Health & Fitness,
Inc., a Delaware corporation, Jumpking, Inc., a Utah corporation, Universal
Technical Services, Inc., a Utah corporation, ICON International Holdings, Inc.,
a Delaware corporation, and ICON IP, Inc., a Delaware corporation (hereinafter
each referred to individually as "Subsidiary" and collectively as
"Subsidiaries").
WHEREAS, Parent and Subsidiaries are part of an Affiliated Group (as
hereafter defined) that will elect to file consolidated Federal income tax
returns and certain consolidated, combined, or unitary state or local income tax
returns; and
WHEREAS, Parent and Subsidiaries desire to set forth their agreement with
respect to the allocation and payment of Federal, state, and local income taxes
attributable to each of them, and the allocation of all responsibilities,
liabilities and benefits relating thereto, for the taxable years in which Parent
and Subsidiaries are jointly included in a single consolidated, combined, or
unitary Federal, state, or local income tax return;
WHEREAS, Parent, Parent and Subsidiaries desire to set forth their
agreement with respect to the allocation and payment of Federal, state, and
local income taxes attributable to each of them, and the allocation of all
responsibilities, liabilities and benefits relating thereto, for the taxable
years in which Parent and Subsidiaries are jointly included in a single
consolidated, combined, or unitary Federal, state, or local income tax return;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereby agree as
follows:
1. Definitions.
(a) As used in this Tax Agreement:
"Affiliated Companies" shall mean, for each taxable year, all Members of
the Affiliated Group, other than the common parent corporation.
"Affiliated Group" shall mean an affiliated group of corporations within
the meaning of Code section 1504(a) for the taxable year in question.
"Alternative Minimum Tax" shall mean the tax imposed by Section 55 of the
Code.
"Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect for the taxable year in question.
"Federal Separate Return Tax Liability" shall have the meaning set forth
in Section 3 below.
"Final Determination" with respect to any tax liability for a taxable
period shall mean the final resolution of such tax liability (including all
related interest and penalties) for such taxable period, by (A) a binding
agreement without reservation on Internal Revenue Service Form 870-AD (or any
successor form thereto), or by a comparable agreement form under the laws of
other jurisdictions; (B) a decision, judgment, decree, or other order by a court
of competent jurisdiction, which has become final and unappealable; (C) a
closing agreement or offer in compromise under Sections 7121 or 7122 of the
Code, or comparable agreements under the laws of other jurisdictions; (D) any
allowance of a refund or credit for such taxable period, but only after the
expiration of all periods during which such refund may be recovered (including
by way of offset) by the tax imposing jurisdiction; or (E) any other final
disposition of the tax liability for such period by reason of the expiration of
the applicable statute of limitations.
"IRS" means the United States Internal Revenue Service or any successor
thereto, including, but not limited to, its agents, representatives and
attorneys.
"Members" shall mean, for each taxable year, each includible member of the
Parent Affiliated Group.
"Separate Return Year" shall mean any taxable year for which a Member is
not included in the Parent Affiliated Group consolidated Federal income tax
return.
"Tax Attributes" shall mean income, gain, loss, deduction and credit, and
all items entering into the computation thereof, for Federal income tax
purposes.
"Treasury Regulations" shall mean the income tax regulations promulgated
under the Code applicable to the taxable year in question.
(b) Any term used in this Tax Agreement that is not defined in this Tax
Agreement shall, unless the context otherwise requires, have the meaning
assigned in the Code or in the Treasury Regulations thereunder.
2. Filing of Consolidated Federal Income Tax Returns.
Parent and its Affiliated Companies will elect to be included in a single
consolidated Federal income tax return for such taxable years for which they are
eligible or required to do so under the Code and Treasury Regulations, unless
Parent shall request otherwise. Such returns shall include all of the income,
gain, loss, deductions and credits and similar items of Parent and its
Affiliated Companies for the period during which such companies are Members of
the Parent Affiliated Group. Parent shall prepare the return and shall have the
right to
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exercise all the powers and shall have all the duties of a common parent as are
conferred upon it by the Code and Treasury Regulations. Parent and its
Affiliated Companies shall execute and file such consents, elections and other
documents that may be required or appropriate for the proper filing and defense
of such returns.
3. Federal Separate Return Tax Liability.
The Federal Separate Return Tax Liability of each Member of the Parent
Affiliated Group shall be computed as if each Member had filed a separate
Federal income tax return for the taxable year with the following modifications:
(a) Any dividends received by one Member from another Member will be
assumed to qualify for the 100 percent dividends received deduction of Section
243 of the Code, or shall be eliminated from such calculation in accordance with
Section 1.1502-14(a)(1) of the Treasury Regulations.
(b) Gain or loss on intercompany transactions, whether deferred or not,
shall be treated by each Member in the manner required by Section 1.1502-13 of
the Treasury Regulations. Excess losses shall be included in income as provided
in Section 1.1502-19 of the Treasury Regulations as if a consolidated Federal
line tax return had been filed for the year.
(c) Limitations on utilization of Tax Attributes, such as the calculation
of a deduction or the utilization of tax credits or the calculation of a tax
liability, shall be made on a consolidated basis. Accordingly, for example, the
limitations provided in Section 38(c) (relating to general business credit);
Section 53 (relating to minimum tax credit) 170(b)(2) (relating to charitable
contribution deduction), Section 172(b)(2) (relating to net operating loss
deduction) and Section 904 (relating to foreign tax credit) of the Code and
similar limitations shall be applied on a consolidated basis. Under the
principles of Revenue Ruling 66-374, 1966-2 C.B. 427, the "net operating loss"
of a Member is the deduction which such Member would have had available if it
actually filed a separate return for the year, but not including any portion of
a net operating loss sustained in a prior or subsequent year. The rules stated
above in this paragraph (c) regarding carryover net operating losses will also
apply in the computation of other Tax Attribute carryover items such as general
business credits, foreign tax credits, alternative minimum tax credits and
charitable contribution deductions. However, no benefit shall be granted a
Member for a Tax Attribute unless the Tax Attribute is availed of in reducing
the consolidated Federal income tax liability.
(d) Elections as to tax credits and tax computations which may have been
different from the consolidated treatment if separate returns had been filed
shall be made on an annual basis by Parent. Certain items of Tax Attributes
shall be apportioned among the Members, as set forth on an apportionment
schedule prepared by Parent and delivered to each Affiliated Company. For
purposes of calculating estimated tax payments, Parent will deliver to each
Affiliated Company by April 1 of each year a preliminary allocation schedule for
use by such
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Affiliated Company in the current tax year. If such schedule has not
been received by April 1 in any tax year, the items shall be apportioned on the
basis of the most recent schedule delivered by Parent to such Members.
(e) In calculating any benefit from a carryback or carryover of net
operating losses, adjustments shall be made to such prior or subsequent year's
Federal Separate Return Tax Liability as required under Section 172(b)(2) and
172(d) of the Code.
4. Payments.
(a) Each Affiliated Company shall pay Parent its Federal Separate Return
Tax Liability (if greater than zero) determined under Section 3 of this Tax
Agreement. Parent shall pay each Affiliated Company with Tax Attributes used by
the Parent Affiliated Group during the taxable year for such Member's allocable
share of the tax benefit to the Parent Affiliated Group of the utilization of
such Tax Attributes. Such tax benefit shall be determined on a marginal tax
basis (calculating consolidated tax liability with and without use of such Tax
Attributes), and allocated to each Affiliated Company whose Tax Attributes are
used by the Parent Affiliated Group during the taxable year pursuant to a
consistent method which reasonably reflects the utilization of such Tax
Attributes (such consistency and allocation to be determined by Parent). Any
payments required by this Section 4(a) shall be made on or before such payment
is required to be made to the IRS (or in the case of a refund (or credit)
shortly after such refund (or credit) is received from the IRS), except as may
otherwise be agreed to by Parent and the appropriate Member and shall include
interest and penalties equal to the amount that is actually paid to (or received
from) the IRS attributable to such Member.
(b) Each Affiliated Company shall also pay Parent its share of estimated
tax payments to be made on its share of projected consolidated Federal income
tax liability for each year determined based on the principles of Paragraph (a)
of this Section 4. Payment to Parent shall be made on or before the estimated
tax payment is required to be paid to the IRS, except as may otherwise be agreed
to by Parent and the appropriate Member. Such Member will receive credit for
such estimated taxes in the year-end computation under Paragraph (a) of this
Section 4 of the Tax Agreement.
(c) If part or all of an unused consolidated Tax Attribute is allocated to
a Member of the Parent Affiliated Group pursuant to Section 1.1502-79 of the
Treasury Regulations or otherwise, and it is carried back or forward to a year
in which such Member filed or files a separate income tax return or a
consolidated Federal income tax return with another Affiliated Group, any refund
or reduction in tax liability arising from the carryback or carryover shall be
retained by such Member. Notwithstanding the above, Parent shall determine
whether an election shall be made not to carry back any consolidated net
operating loss or other Tax Attribute arising in a consolidated return year
(including any portion allocated to a Member under Section 1.1502-79 of the
Treasury Regulations) in accordance with Section 172(b)(3)(C) of the Code or
other applicable provision.
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(d) Any payments by one party to the other which are not made when due
shall bear interest, compounded daily, at a rate equal to the rate established
by the Secretary of the Treasury pursuant to Section 6621(a)(1) of the Code.
(e) All amounts paid pursuant to this Tax Agreement by one party to
another shall be treated by such parties for all tax and book purposes as
intercompany settlements of liabilities. It is acknowledged that any allocation
of tax liability in excess of that under Section 1552 of the Code will be
regarded solely for federal income tax purposes as distributions with respect to
stock, contributions to capital, or combinations thereof, as appropriate.
5. Tax Indemnity.
Except as otherwise agreed, Parent shall be liable for, and shall
indemnify and hold each Affiliated Company harmless (subject to setoff for any
unpaid amount under Sections 4 and 6 of this Tax Agreement) against any and all
Federal income tax, interest and penalties for periods in which it is included
in the Parent Affiliated Group consolidated Federal income tax return. Each
Affiliated Company shall be liable for, and shall indemnify and hold each other
Member harmless against, any and all Federal income tax for periods in which it
is not included in the Parent Affiliated Group consolidated Federal income tax
return.
6. Adjustment to Federal Income Tax Liability.
(a) Parent shall control all decisions as to tax audits and proceedings as
exclusive agent of each of the Affiliated Companies.
(b) Except as otherwise provided in this Tax Agreement, if the
consolidated Federal income tax liability of the Parent Affiliated Group is
adjusted for any taxable year, whether by means of a an amended return, claim
for refund, or after tax audit by the IRS, upon a Final Determination thereof,
the Federal Separate Return Liability of each such Member shall be recomputed
under this Tax Agreement to give effect to such adjustments. In the case of a
refund, Parent shall make payment to each such Member for its share of the
refund, determined in the same manner as in Section 4 of this Tax Agreement,
shortly after the refund is received by Parent, and in the case of an increase
in tax liability, each such Member shall pay to Parent its allocable share of
such increased tax liability within on or before such liability is due. If any
interest is to be paid or received as a result of a consolidated Federal income
tax deficiency or refund, such interest shall be allocated to the Members in the
ratio each such Member's change in consolidated Federal income tax liability
bears to the total change in tax liability. Any penalty shall be allocated upon
such basis as Parent deems just and proper in view of all applicable
circumstances.
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7. Certain State and Local Income Tax Liabilities.
(a) Each Member shall file its own separate company state, local or
foreign income and other tax returns and shall pay all such separate company
taxes required to be paid to the relevant taxing authorities (and shall retain
the rights to all refunds with respect thereto).
(b) Parent shall include certain Affiliated Companies in certain
consolidated, combined, or unitary state or local income tax returns to the
extent required or elected by Parent. To the extent appropriate and subject to
the provisions of Section 7(c) hereof, rules similar to the provisions of
Sections 2, 3, 4, 5 and 6 of this Tax Agreement (to the extent the law is the
same) shall be applied to the filing of returns, contests and claims for refund
and reimbursements with respect to state and local franchise or income tax
liabilities to which any Member of the Parent Affiliated Group are subject and
which are required to be determined on a unitary, combined or consolidated
basis.
(c) If the parties are, after negotiation in good faith, unable to agree
upon the appropriate application of such rules with respect to such franchise or
income tax liabilities, the controversy shall be settled by Parent's regular
independent outside accounting firm.
8. Election under Section 1552 of the Code.
This Agreement is not intended to establish the method by which the
earnings and profits of each member of the Group will be determined. Parent
reserves the right to elect the method for allocating tax liability for the
purposes of determining earnings and profits as set forth in Sections
1.1552-1(a) and 1.1502-33(d) of the Treasury Regulations.
9. Mutual Cooperation.
Parent and the Affiliated Companies shall provide each other with such
assistance as may be reasonably requested by either of them in connection with
the preparation and execution of any tax return, any audit or other examination
by any taxing authority, or any judicial or administrative proceedings relating
to any tax liability, and each will retain and, upon the request of the other,
provide the other with any records or information which may be relevant to such
return, audit or examination proceedings. Parent and the Affiliated Companies
agree to take whatever reasonable action is necessary to minimize the aggregate
tax liabilities of each of the Members, including filing tax returns on a
consolidated, combined or unitary basis, or not filing on such basis.
10. Miscellaneous.
(a) Injunctions. The parties acknowledge that irreparable damage would
occur in the event that any of the provisions of this Tax Agreement were not
performed in accordance with its specific terms or were otherwise breached. The
parties hereto shall be entitled to an
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injunction or injunctions to prevent breaches of the provisions of this Tax
Agreement and to enforce specifically the terms and provisions hereof in any
court having jurisdiction, such remedy being in addition to any other remedy to
which they may be entitled at law or equity.
(b) Assignment. Except by operation of law or in connection with the sale
of all or substantially all the assets of a party hereto, this Tax Agreement
shall not be assignable, in whole or in part, directly or indirectly, by any
party hereto without the written consent of the other parties; and any attempt
to assign any rights or obligations arising under this Tax Agreement without
such consent shall be void; provided, however, that the provisions of this Tax
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties hereto and their respective successors and permitted assigns, but no
assignment shall relieve any party's obligations hereunder without the written
consent of the other parties.
(c) Further Assurances. Subject to the provisions hereof, the parties
hereto shall make, execute, acknowledge and deliver such other instruments and
documents, and take all such other actions, as may be reasonably required in
order to effectuate the purposes of this Tax Agreement and to consummate the
transactions contemplated hereby. Subject to the provisions hereof, each of the
parties shall, in connection with entering into this Tax Agreement, performing
its obligations hereunder and taking any and all actions relating hereto, comply
with all applicable laws, regulations, orders and decrees, obtain all required
consents and approvals and make all required filings with any governmental
agency, other regulatory or administrative agency, commission or similar
authority and promptly provide the other parties with all such information as
they may reasonably request in order to be able to comply with the provisions of
this paragraph.
(d) Parties in Interest. Except as herein otherwise specifically provided,
nothing in this Tax Agreement expressed or implied is intended to confer any
right or benefit upon any person, firm or corporation other than the parties and
their respective successors and permitted assigns.
(e) Waivers, Etc.. No failure or delay on the part of the parties in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No modification or waiver of any provision of this Tax Agreement
nor consent to any departure by the parties therefrom shall in any event be
effective unless the same shall be in writing, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given.
(f) Setoff. All payments to be made by any party under this Tax Agreement
shall, except to the extent otherwise specifically provided herein, be made
without setoff, counterclaim or withholding, all of which are expressly waived.
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(g) Change of Law. Any alteration, modification, addition, deletion, or
other change in the consolidated income tax return provisions of the Code or the
Treasury Regulations shall automatically be applicable to this Tax Agreement
mutatis mutandis. If, due to any change in applicable law or regulations
interpretation thereof by any court of law or other governing body having
jurisdiction subsequent to the date of this Tax Agreement, performance of any
provision of this Tax Agreement or any transaction contemplated thereby shall
become impracticable or impossible, the parties hereto shall use their best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such provision.
(h) Departing Members. Any Member corporation which leaves the Parent
Affiliated Group shall be bound by this Tax Agreement. Failure of one or more
parties hereto to qualify by meeting the definition of Member of the Parent
Affiliated Group shall not operate to terminate this Tax Agreement with respect
to the other parties as long as two or more parties hereto continue so to
qualify.
(i) New Members. The Members hereto specifically recognize that from time
to time other companies may become Members of the Parent Affiliated Group and
hereby agree that such new Members must become parties to this Tax Agreement by
executing the master copy of the Tax Agreement which shall be maintained at
Parent's headquarters. It will not be necessary for all the other Members to
resign the Tax Agreement, but the new Member may simply sign the existing Tax
Agreement and it will be effective as if the old Members had resigned.
(j) Amendment of this Tax Agreement. This Tax Agreement constitutes the
entire agreement between the parties and shall, except as provided in Section 8
of this Tax Agreement, supersede any other tax-sharing or tax-allocation
agreement or arrangement (whether written or oral) in effect between the parties
hereto prior to the effective date hereof with respect to the matters expressly
dealt with herein. This Tax Agreement may not be altered, changed, modified, or
terminated orally; any modification or revision of this Tax Agreement shall be
accomplished only through a writing clearly denominated as an amendment to this
Tax Agreement signed by the parties hereto.
(k) Confidentiality. Subject to any contrary requirement of law or
regulation and the right of each party to enforce its rights hereunder in any
legal action, each party agrees that it shall keep strictly confidential, and
shall cause its employees and agents to keep strictly confidential, any
information which it or any of its agents or employees may acquire pursuant to,
or in the course of performing its obligations under, any provision of this Tax
Agreement; provided, however, that such obligation to maintain confidentiality
shall not apply to information which (1) at the time of disclosure was in the
public domain not as a result of acts by the Receiving Party or (2) was in the
possession of the Receiving Party at the time of disclosure.
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(l) Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this Tax
Agreement.
(m) Counterparts. For the convenience of the parties, any number of
counterparts of this Tax Agreement may be executed by the parties hereto, and
each such executed counterpart shall be, and shall be deemed to be, an original
instrument.
(n) Governing Law. This Tax Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed therein.
(o) Records and Workpapers. Each party will retain all returns, schedules
and workpapers, and all material records and other documents relating thereto,
until (i) Parent notifies such party that such returns and other documents may
be destroyed after such returns and other documents are offered to Parent, (ii)
the expiration of the statute of limitations (including extensions) of the
taxable years to which such returns and other documents relate or there has been
a Final Determination of all tax for such years, and (iii) there has been a
final settlement of all payments which may be required under this Tax Agreement
for such years.
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IN WITNESS WHEREOF, the parties hereto have caused this Tax Agreement to
be duly executed by their respective officers, each of whom is duly authorized,
all as of the day and year first above written.
HF Holdings, Inc.
By: /s/ S. Fred Beck
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Title: CFO, V.P. and Treasurer
ICON Health & Fitness, Inc.
By: /s/ S. Fred Beck
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Title: CFO, V.P. and Treasurer
Jumpking, Inc.
By: /s/ S. Fred Beck
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Title: President
Universal Technical Services, Inc.
By: /s/ S. Fred Beck
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Title: Vice President
ICON International Holdings, Inc.
By: /s/ S. Fred Beck
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Title: V.P. and Treasurer
ICON IP, Inc.
By: /s/ S. Fred Beck
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Title: