TAX ALLOCATION AGREEMENT
THIS TAX ALLOCATION AGREEMENT (this "Agreement"), dated as of ____, 1999
by and between Crane Co., a Delaware corporation ("Crane"), and Huttig Building
Products, Inc., a Delaware corporation and a wholly owned, indirect subsidiary
of Crane ("Huttig").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Crane, Huttig and Crane International Holdings, Inc. ("Crane
International"), a Delaware corporation and a wholly owned subsidiary of Crane
and direct owner of all of the outstanding stock of Huttig have entered into a
Distribution Agreement dated as of ____, 1999 (the "Distribution Agreement"),
providing for the Distribution (as defined in the Distribution Agreement) of all
of the outstanding stock of Huttig to Crane's shareholders;
WHEREAS, the Board of Directors of Crane and Crane International have
approved the Distribution Agreement;
WHEREAS, the execution and delivery of this Agreement by the parties
hereto is a condition to the obligations of the parties to the Distribution
Agreement to consummate the Distribution; and
WHEREAS, Crane on behalf of itself and the Crane Group (as defined
herein) and Huttig, on behalf of itself and the Huttig Group (as defined
herein), wish to provide for the allocation between the Crane Group and the
Huttig Group 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) and to provide for certain other matters.
NOW, THEREFORE, in consideration of the premises and of the respective
covenants and agreements set forth herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS. Capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings assigned to such terms in
the Distribution Agreement, as the case may be. As used in this Agreement, the
following terms shall have the following respective meanings:
"Actually Realized" or "Actually Realizes" means, for purposes of
determining the timing of any Taxes (or related Tax cost or benefit) relating to
any Payment, transaction, occurrence or event (including the receipt of any Tax
Refund), the time at which the amount of Taxes payable by such 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 such payment,
transaction, occurrence or event.
"Affiliate" means with respect to each of the parties hereto, (i) a
corporation, partnership, limited liability company, trust, joint venture or
other business entity in which 50% or more of the outstanding equity or voting
power is owned (directly or indirectly) by such party, and (ii) a partnership in
which a general partner interest is owned by such party. For purposes of this
Agreement, in no event shall Crane or Huttig be treated as an Affiliate of the
other.
"Affiliated Group" means the affiliated group of corporations within the
meaning of Section 1504 of the Code of which Crane is the common parent.
"Code" means the Internal Revenue Code of 1986, as amended, and shall
include corresponding provisions of any subsequently enacted Federal Tax laws.
"The Crane Group" means, solely for purposes of this Agreement, Crane
and its Affiliates, other than Huttig and its Affiliates (determined after
giving effect to the Distribution).
"Crane Tax Difference" has the meaning set forth in Section 4.1(b).
"Crane Tax Item" means a Tax Item that is attributable to the Crane
Group and is not a Huttig Tax Item.
"Consolidated Federal Tax Returns" are the Federal Tax Returns for the
Affiliated Group filed on a consolidated basis pursuant to Section 1501 of the
Code for any Pre-Distribution Taxable Period.
"Consolidated State Tax Returns" are the state Tax Returns for the
Affiliated Group filed on a consolidated, unitary or combined basis pursuant to
the laws of any state Taxing Authority for any Pre-Distribution Taxable Period.
"Distribution" means the distributions of Huttig Common Stock to Crane
and to the holders of Crane Common Stock pursuant to the Distribution Agreement.
"Distribution Agreement" mean the Distribution Agreement dated as of
_______, 1999 among Crane, Huttig and Crane International Holdings, Inc.
"Distribution Date" means the date on which the Distribution occurs or
is deemed to occur for Federal Income Tax purposes and shall be deemed effective
as of the close of business on such date.
"Group" means either the Crane Group or the Huttig Group, as the context
provides.
"Huttig Group" means Huttig and its Affiliates, determined immediately
after the Distribution, specifically, Rondel's Inc. and CIPCO Inc.
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"Huttig Tax Item" means a Tax Item solely attributable to the Huttig
Group.
"Income Tax Benefit" means for any taxable period the excess of (i) the
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 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 as a negative Income Tax liability for purposes of such
calculation).
"Income Tax Detriment" means for any taxable period the excess of (i)
the 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 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 as a negative Income Tax liability for purposes of such
calculation).
"Income Taxes" means any Tax based upon, measured by, or calculated with
respect to (i) net income or profits (including, but not limited to, any capital
gains, alternative minimum Tax and any Tax on items of Tax preference, but not
including sales, use, real property gains, 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 be based, measured by, or
calculated with respect to, is described in clause (i) above.
"Indemnitee" has the meaning set forth in Section 6.2.
"Indemnitor" has the meaning set forth in Section 6.2.
"Indemnity Issue" has the meaning set forth in Section 6.2.
"IRS" means the Internal Revenue Service.
"Loss Group" has the meaning set forth in Section 4.1(a)(ii).
"Opinion of Counsel" means an opinion of independent tax counsel of
recognized national standing and experienced in the issues to be addressed and
otherwise reasonably acceptable to Crane, which sets forth an Unqualified Tax
Opinion in form and substance satisfactory to Crane. In no event shall Crane be
required to conclude that an opinion is satisfactory if there is any risk,
however remote, that the transaction which is the subject of the opinion will
cause the Distribution to be taxable to any extent under the Code in a manner
inconsistent with the rulings requested in the Ruling Request.
"Post-Distribution Taxable Period" means a taxable period beginning
after the Distribution Date.
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"Post-Tax Indemnification Period" means 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" means a taxable period ending on or
before the Distribution Date.
"Restricted Period" means the two year period beginning on the
Distribution Date.
"Reverse 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 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.
"Ruling Request" means the request for rulings (including all
appendices, exhibits and supplements) under Section 355 of the Code, dated July
2, 1999 and filed with the IRS National Office on behalf of Crane, in respect of
the Distribution.
"Straddle Period" means a taxable period that begins before and includes
but does not end on the Distribution Date.
"Tax" or "Taxes" means all forms of taxation, whenever created or
imposed, and whether imposed by a local, municipal, governmental, state,
foreign, federal or other body, and without limiting the generality of the
foregoing, shall include income, sales, use, ad valorem, gross receipts,
license, value added, franchise, transfer, recording, withholding, payroll, wage
withholding, employment, excise, occupation, unemployment insurance, social
security, business license, business organization, stamp, environmental, premium
and property taxes, together with any related interest (including the actual
interest that would have accrued if there were no netting of Taxes), penalties
and additions to any such tax, or additional amounts imposed by any Taxing
Authority (domestic or foreign) upon the Crane Group or the Huttig Group.
"Tax Audit Proceeding" means any audit or other examination, judicial or
administrative proceeding relating to liability for, or refunds or adjustments
with respect to, Taxes.
"Tax Binder" means the annual information package prepared by Huttig for
use by Crane in preparing state and federal tax returns.
"Tax Contest" has the meaning set forth in Section 6.2.
"Tax Deficiency" means a net increase in Taxes payable as a result of a
Tax Audit Proceeding or an amendment of a Tax Return or an event having a
similar effect.
"Tax Indemnification Period" means any Pre-Distribution Taxable Period
and that portion of any Straddle Period that ends on and includes the
Distribution Date.
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"Tax Item" means any item of income, gain, loss, deduction, credit,
provisions for reserves, recapture of credits or any other item which is taken
into account in determining taxable income or is otherwise taken into account in
determining Taxes paid or payable, including an adjustment under Section 481 of
the Code resulting from a change in accounting method, and amounts of property,
payroll, sales or other items that are relevant to the apportionment, allocation
and determination of Taxes for purposes of determining Tax liabilities other
than Federal Income Tax liability.
"Tax Records" has the meaning set forth in Section 7.2
"Tax Refund" means a refund of Taxes (including a reduction in Taxes as
a result of the utilization of any credit or any offset against Taxes or Tax
Items) reduced (but not below zero) by any net increase in Taxes Actually
Realized by the recipient (or its Affiliate) thereof as a result of the receipt
thereof.
"Tax Return" means any return, filing, questionnaire, information return
or other document required 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 Taxing Authority
(whether domestic or foreign) in connection with any Tax or Taxes (whether or
not a payment is required to be made with respect to such filing).
"Taxing Authority" means any governmental or quasi-governmental body
exercising any Taxing authority or Tax regulatory authority.
"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 any Tax Indemnification Period.
"Unqualified Tax Opinion" means an unqualified "will" opinion of tax
counsel to the effect that a transaction does not disqualify the Distribution
from qualifying for tax-deferred treatment for the shareholders of Crane and any
member of the Crane Group under Code (section) 355 and any other applicable
sections of the Code, assuming that the Distribution would have qualified for
tax-deferred treatment if such transaction did not occur. An Unqualified Tax
Opinion may rely upon, and assume the accuracy of, any representations contained
in the Ruling Request, and any representations contained in an officer's
certificate delivered by an officer of Crane or Huttig to such counsel.
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ARTICLE II
PREPARATION AND FILING OF TAX RETURNS
Section 2.1. PREPARATION OF TAX RETURNS.
(a) Consistent with Agreements. Each of the parties to this
Agreement agrees to, and to cause each of its relevant Affiliates to, report the
Distribution as a series of transactions that satisfy the requirements of Code
Section 355.
(b) Consistent with Past Practice. Except for any accounting method
changes pursuant to applications that are approved by the IRS, all Tax Returns
described in Section 2.2 filed after the date of this Agreement, in the absence
of a controlling change in law or circumstance, 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 Tax Items have been filed. 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.
(c) Huttig Obligations. Huttig agrees to cooperate in good faith
with Crane to determine the appropriate amount of Tax Items, if any,
attributable to the Crane Group to be reflected on any Tax Returns for Straddle
Periods to be prepared by Crane in accordance with Section 2.2(c). With respect
to such Tax Returns, Huttig (i) will deliver to Crane no later than 60 days
after the Closing Date a Tax Binder for itself and each Affiliate for such
taxable years and (ii) will consult with Crane with respect to the application
of the Tax Items to be shown on the Tax Returns. Huttig will inform and consult
with Crane regarding any Tax Audit Proceedings or any other adjustments which
would materially affect any of the Tax Items shown on the Tax Returns. Huttig
shall provide Crane with comments and/or objections to such Tax Returns at least
21 days prior to the due date for filing such Tax Returns (giving effect to
applicable extensions).
(d) Crane Obligations. Crane agrees to cooperate in good faith with
Huttig to determine the appropriate amount of Tax Items attributable to the
Huttig Group to be reflected on any Tax Returns for Pre-Distribution Taxable
Periods and Straddle Periods to be prepared and filed by Crane in accordance
with Section 2.2(a), (b) and (c). Crane further agrees to (i) provide Huttig
with a copy of each such Tax Return at least 10 days prior to the due date for
filing of any such Tax Returns (giving effect to applicable extensions) for such
taxable years and (ii) consult with Huttig with respect to the Tax Items to be
shown on such Tax Returns. The computations made with respect to the Tax Returns
shall be made, when applicable, on a basis consistent with the principles of
Treasury Regulation (sections) 1.1502-76(b)(2). Crane will inform and consult
with Huttig regarding any Tax Audit Proceedings or any other adjustments that
would materially offset any of the Tax Items shown on the Tax Returns. Crane
will provide Huttig with copies of all Tax Returns prepared and filed by Crane
in accordance with Sections 2.2(a), (b) and (c) promptly after filing.
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Section 2.2. FILING OF TAX RETURNS.
(a) Consolidated Federal Tax Returns and Consolidated State Tax
Returns. The Consolidated Federal Tax Returns and the Consolidated State Tax
Returns required to be filed after the date hereof shall be prepared or caused
to be prepared and filed by Crane.
(b) Pre-Distribution Taxable Period Tax Returns. All Tax Returns
other than those described in Section 2.2(a) that are required to be filed for
any Pre-Distribution Taxable Period shall be prepared and timely filed or caused
to be prepared and timely filed by Crane.
(c) Huttig Straddle Period Tax Returns. All Tax Returns other than
those described in Section 2.2(a) which are required to be filed by any member
of the Huttig Group for any Straddle Period shall be prepared and timely filed
or caused to be prepared and timely filed by Huttig.
(d) Crane Straddle Period Tax Returns. All Tax Returns other than
those described in Section 2.2(a) which are required to be filed by any member
of the Crane Group for any Straddle Period shall be prepared and timely filed or
caused to be prepared and timely filed by Crane.
(e) Post-Distribution Taxable Period Tax Returns. The filing of all
Tax Returns for all Post-Distribution Taxable Periods shall be the
responsibility of the Huttig Group if such Tax Returns relate to a member or
members of the Huttig Group or their respective assets or businesses, and shall
be the responsibility of the Crane Group if such Tax Returns relate to a member
or members of the Crane Group or their respective assets or businesses.
Section 2.3. DESIGNATION. Huttig hereby irrevocably designates, and
agrees to cause each of its Affiliates to so designate, Crane as its agent to
take any and all actions necessary or incidental to the preparation and filing
of the Tax Returns described in Section 2.2(a), (b) and (d). Crane hereby
irrevocably designates, and agrees to cause each of its Affiliates to so
designate, Huttig as its agent to take any and all actions necessary or
incidental to the preparation and filing of the Tax Returns described in Section
2.2(c).
ARTICLE III
PAYMENT OF TAXES
Section 3.1. PAYMENT OF TAX LIABILITIES.
(a) Consolidated and Pre-Distribution Tax Liabilities.
(i) Huttig Liability. Except as otherwise provided in this
Agreement, Huttig or a member of the Huttig Group shall pay or cause to be paid,
directly to, or at the direction of, Crane (such direction may specify payment
by direct wire transfer), at least two days prior to the date payment (including
any estimated payment) thereof is due, all Taxes due with
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respect to the Tax Returns described in Section 2.2(a) and (b) that are
attributable to any member or members of the Huttig Group, the respective assets
or businesses of any member or members of the Huttig Group and any Huttig Tax
Item.
(ii) Crane Liability. Except as otherwise provided in this
Agreement, Crane or a member of the Crane Group shall pay or cause to be paid,
on a timely basis, all Taxes due with respect to the Tax Returns described in
Section 2.2(a) and (b) that are attributable to any member or members of the
Crane Group, the respective assets or businesses of any member or members of the
Crane Group and any Crane Tax Item.
(b) Separate Straddle Period Tax Liabilities.
(i) Huttig Liability. Except as otherwise provided in this
Agreement, Huttig or a member of the Huttig Group shall pay or cause to be paid,
on a timely basis, all Taxes due with respect to the Tax Returns described in
Section 2.2(c); provided, however, that Crane shall pay directly to, or at the
direction of, Huttig (such direction may specify payment by direct wire
transfer), at least two days prior to the date payment (including estimated
payment) thereof is due, that portion of those Taxes due that are attributable
to any member or members of the Crane Group, the respective assets or businesses
of any member or members of the Crane Group or any Crane Tax Item.
(ii) Crane Liability. Except as otherwise provided in this
Agreement, Crane or a member of the Crane Group shall pay or cause to be paid,
on a timely basis, all Taxes due with respect to the Tax Returns described in
Section 2.2(d); provided, however, that Huttig shall pay directly to, or at the
direction of, Crane (such direction may specify payment by direct wire
transfer), at least two days prior to the date payment (including estimated
payment) thereof is due, that portion of those Taxes due that are attributable
to any member or members of the Huttig Group, the respective assets or
businesses of any member or members of the Huttig Group or any Huttig Tax Item.
(c) Post-Distribution Taxable Period Tax Liabilities. 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 Return pursuant to which such Taxes are
due or, if no such Tax Returns are due, by the party liable, without regard to
this Agreement, for such Taxes.
Section 3.2. TAX REFUNDS AND CARRYBACKS.
(a) Retention and Payment of Tax Refunds. Except as otherwise
provided in this Agreement, Huttig shall be entitled to retain, and to receive
within 10 days after Actually Realized by the Crane Group, the portion of all
Tax Refunds of Taxes for which the Huttig Group is liable pursuant to Section
3.1 or Section 6.1(a), and Crane shall be entitled to retain, and to receive
within 10 days after Actually Realized by the Huttig Group, the portion of all
Tax Refunds of Taxes for which the Crane Group is liable pursuant to Section 3.1
or Section 6.1(b). Notwithstanding the foregoing, (i) all Tax Refunds resulting
from the carryback of any Crane
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Tax Item arising in a Post-Tax Indemnification Period to a Tax Indemnification
Period shall be for the account and benefit of the Crane Group and, if and to
the extent Actually Realized by Huttig, Huttig shall pay over to Crane any such
Tax Refund within 10 days after it is Actually Realized by Huttig or any member
of the Huttig Group, (ii) all Tax Refunds resulting from the carryback of any
Huttig Tax Item arising in a Post-Tax Indemnification Period to a Tax
Indemnification Period shall be for the account of Huttig and, if and to the
extent Actually Realized by Crane, Crane shall pay over to Huttig any such Tax
Refund within 10 days after it is Actually Realized by Crane or any member of
the Crane Group, (iii) all Tax Refunds resulting from the utilization of any Tax
Items (such as the utilization of a minimum or foreign tax credit or Section
481(a) adjustments which reduce current year Taxes) attributable to the Huttig
Group or the respective assets or businesses of any member or members of the
Huttig Group arising in a Tax Indemnification Period shall be for the account of
Huttig and, if and to the extent Actually Realized by Crane, Crane shall pay
over to Huttig any such Tax Refund within 10 days after it is Actually Realized
by Crane or any member of the Crane Group, and (iv) all Tax Refunds resulting
from the utilization of any Tax Items (such as the utilization of a minimum or
foreign tax credit or Section 481(a) adjustments which reduce current year
Taxes) attributable to the Crane Group or the respective assets or businesses of
any member or members of Crane Group arising in a Tax Indemnification Period
shall be for the account of Crane and, if and to the extent Actually Realized by
Huttig, Huttig shall pay over to Crane any such Tax Refund within 10 days after
it is Actually Realized by Huttig or any member of the Huttig Group. In
computing the amount of any Tax Refunds described in (i), (ii), (iii) or (iv)
above, the party paying over such Tax Refunds shall be deemed to recognize all
other items of income, gain, loss, deduction or credit for that taxable period
together with the utilization of any Tax Item causing a Tax Refund described in
this Section 3.2(b). Huttig and Crane and their respective Affiliates will use
commercially reasonable efforts to claim and utilize the Tax Items referred to
in (i), (ii), (iii) or (iv) in a manner which is designed to maximize (on a
present value basis) the Tax Refunds described therein.
(b) Refund Claims. Huttig shall be permitted to file at Huttig's
sole expense, and Crane shall reasonably cooperate with Huttig in connection
with, any claims for Tax Refunds to which Huttig is entitled pursuant to this
Section 3.2 or any other provision of this Agreement. Huttig shall reimburse
Crane for any reasonable out-of-pocket costs and expenses incurred by any member
of the Crane Group in connection with such cooperation. Crane shall be permitted
to file at Crane's sole expense, and Huttig shall reasonably cooperate with
Crane in connection with, any claims for Tax Refund to which Crane is entitled
pursuant to this Section 3.2 or any other provision of this Agreement. Crane
shall reimburse Huttig for any reasonable out-of-pocket costs and expenses
incurred by any member of the Huttig Group in connection with such cooperation.
Any claim for a Tax Refund under this Section 3.2 to which Huttig is entitled
and which relates to a Tax Return for which Crane is required to file under
Section 2.2 shall be subject to the Crane Group's consent (such consent not to
be unreasonably withheld). A copy of a claim for any Tax Refund to which either
party is entitled to file under this Section 3.2 shall be provided to the other
party no later than 30 days prior to the filing of such Tax Refund claim. In the
event that Huttig and Crane are each entitled to file a Tax Refund claim
pursuant to this Section 3.2 for the same period, such Tax Refunds of Crane and
Huttig shall be allocated in a
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manner corresponding to the allocation and calculation of Taxes for such periods
under Article IV.
ARTICLE IV
ALLOCATION AND CALCULATION OF TAXES
Section 4.1. ALLOCATIONS.
(a) (i) In the case of any Consolidated Federal Tax Return described
in Section 2.2(a), the Crane Group and the Huttig Group will each be allocated
the portion of such Taxes due with respect to such Tax Returns attributable to
each Group, the respective assets or businesses of any member or members of each
Group and any Tax Item of each Group. This allocation shall be made in
accordance with the principles set forth in Treasury Regulation Section
1.1552-1(a)(2) on the basis of the percentage of the total Tax liability for
each Group, if computed on a separate consolidated federal income tax return of
each Group, would bear to the aggregate amount of such Tax liability of the
Crane Group and the Huttig Group so computed.
(ii) The principles of Treasury Regulation Section
1.1502-33(d)(3) also shall apply to the allocation set forth in Section
4.1(a)(i). If the amount of the Affiliated Group's consolidated federal income
tax liability is less than the sum of the aggregate separate return tax
liabilities of the Huttig Group and the Crane Group (as computed pursuant to
Section 4.1(a)(i) above) due to losses or tax credits of one Group (including
losses or tax credits carried over from prior years), the decrease in tax
liability resulting therefrom shall be allocated 100 percent to that Group. A
Group thus may have a "negative" income tax liability as a result of such an
allocation (a "Loss Group"). If a Loss Group exists, the other Group shall pay
to the Loss Group an amount equal to such "negative" income tax liability. In
other words, if Tax attributes (e.g., losses or tax credits) of one Group are
utilized by the other Group to reduce taxable income or Tax, as the case may be,
the Group utilizing such Tax attributes shall pay to the other Group, with
respect to losses, an amount equal to such reduction in taxable income resulting
from the utilization of such losses multiplied by the top marginal federal
corporate income Tax rate actually used by the Group utilizing the losses in
calculating its deemed Tax liability (prior to the application of Tax credits
against such liability) under this Section 4.1(a) for the taxable period during
which such losses are utilized and, with respect to Tax credits, an amount equal
to the actual amount by which the deemed Tax liability calculated pursuant to
this Section 4.1(a) is reduced by such Tax credits for the taxable period during
which such Tax credits are utilized. Any such payments shall be consistent with
the procedures and timing set forth in Section 3.1(b) hereof.
(b) In the case of any Tax Return described in Section 2.2(b) to be
prepared by Crane or any Consolidated State Tax Returns described in Section
2.2(a) or any Tax returns described in Section 2.2(c), the Huttig Group will be
allocated all of the Taxes due with respect to each such Tax Return; provided,
however, if a Crane Tax Item is included in any such Tax Return, the Taxes that
would be due with respect to such Tax Return, calculated as if the Crane Tax
Item had not been included but with all other Tax Items unchanged, shall be
subtracted from the Taxes due with respect to such Tax Return taking into
account the Crane Tax Items (the
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"Crane Tax Difference"). If the Crane Tax Difference is a positive amount, the
Crane Group shall be allocated an amount of Taxes due on such Tax Return equal
to the Crane Tax Difference. If the Crane Tax Difference is a negative amount,
the Huttig Group shall pay to the Crane Group an amount equal to the Crane Tax
Difference consistent with the procedures and timing set forth in Section 3.1(b)
hereof.
(c) In the case of any Tax Return described in Section 2.2(d), the
principles set out in Section 4.1(b) hereof shall govern.
(d) In the case of any Tax Return described in Section 2.2(e) to be
filed by Huttig, the Huttig Group will be allocated all the Taxes due with
respect to each such Tax Return.
(e) In the case of any Tax Return described in Section 2.2(e) to be
filed by Crane, the Crane Group will be allocated all the Taxes due with respect
to each such Tax Return.
(f) The allocations under this Section 4.1 shall be determined in a
manner consistent with the principles set forth in Section 4.3.
Section 4.2. CALCULATIONS AND DETERMINATIONS. All calculations and
determinations required to be made pursuant to this Agreement (including the
calculation in Section 4.1) shall be made in good faith by the party making such
calculations or determinations. Except for any accounting method changes
pursuant to applications for accounting method changes filed prior to the date
hereof and any accounting method elections and changes that may be effective as
of the day after the Distribution Date, all calculations and determinations
required to be made pursuant to this Agreement (including the calculation in
Section 4.1), shall be made, in the absence of a controlling change in law or
circumstance, 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 Tax Items have been filed.
Section 4.3. PRINCIPLES OF DETERMINATION. In implementing this
Agreement, except as otherwise specifically provided, the parties shall make any
adjustments that are necessary to ensure that, with respect to Taxes for
Straddle Periods or Pre-Distribution Taxable Periods, payments and
reimbursements between the parties reflect the principles that (i) Huttig is to
bear responsibility only for that portion of Taxes for Straddle Periods and
Pre-Distribution Taxable Periods that are attributable to the Huttig Group, the
respective assets or businesses of any member or members of the Huttig Group and
any Huttig Tax Item, (ii) Crane is to bear responsibility for all other Taxes
for Straddle Periods and Pre-Distribution Taxable Periods, (iii) Crane is
responsible for all Taxes for Post-Distribution Taxable Periods (calculated by
treating the day after the Distribution Date as the first day of any
Post-Distribution Taxable Period) reflected on the Tax Returns, the
responsibility for the filing thereof is imposed on Crane pursuant to this
Agreement, (iv) Huttig is responsible for all Taxes for Post-Distribution
Taxable Periods (calculated by treating the day after the Distribution Date as
the first day of any Post-Distribution Taxable Period) reflected on the Tax
Returns, the responsibility for the filing thereof is imposed on Huttig pursuant
to this Agreement, (v) Crane will be entitled to any Tax Refunds
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relating to Tax Items attributable to the Crane Group, the respective assets or
businesses of any member or members of the Crane Group or any Crane Tax Item
arising in a Tax Indemnification Period and (vi) Huttig will be entitled to any
Tax Refunds relating to Tax Items attributable to the Huttig Group or the
respective assets or businesses of any member or members of the Huttig Group or
any Huttig Tax Item arising in a Tax Indemnification Period.
ARTICLE V
REPRESENTATIONS AND COVENANTS
Section 5.1. REPRESENTATIONS.
(a) Crane Representations.
(i) Crane has reviewed the materials submitted to the IRS in
connection with the Ruling Request and, to the best of Crane's knowledge, these
materials, including, without limitation, any statements and representations
concerning Crane, its business operations, capital structure and/or
organization, are complete and accurate in all material respects. All
representations made by Crane in the Ruling Request were accurate as of the date
of the Ruling Request and will be accurate as of the effective date of this
Agreement. With respect to any representation or statement made by or on behalf
of Crane or the Crane Group in connection with the Ruling Request and to the
extent such representation or statement relates to future actions or events
under their control, neither Crane nor any member of the Crane Group will take
any action that would have caused such representation or statement to be untrue
if Crane or any member of the Crane Group had planned or intended to take such
action at the time such representation or statement was made by or on behalf of
Crane.
(ii) Crane hereby represents and warrants to Huttig that Crane
has no plan or intention to undertake any of the transactions set forth in
Section 5.2(a) nor does Crane or any member of the Crane Group have any
intention to cease to engage in the active conduct of its current trades or
businesses (within the meaning of Section 355(b)(2) of the Code) during the
Restricted Period.
(b) Huttig Representations.
(i) Huttig has reviewed the materials submitted to the IRS in
connection with the Ruling Request and, to the best of Huttig's knowledge, these
materials, including, without limitation, any statements and representations
concerning Huttig, its business operations, capital structure and/or
organization, are complete and accurate in all material respects. All
representations made by or on behalf of Huttig or the Huttig Group in connection
with the Ruling Request were accurate as of the date of the Ruling Request and
will be accurate as of the effective date of this Agreement. With respect to any
representation or statement made by or on behalf of Huttig or the Huttig Group
in connection with the Ruling Request and to the extent such representation or
statement relates to future actions or events under their control, neither
Huttig nor any member of the Huttig Group will take any action that would have
caused such representation or statement to be untrue if Huttig or any member of
the Huttig Group had
12
planned or intended to take such action at the time such representation or
statement was made by or on behalf of Huttig.
(ii) Huttig hereby represents and warrants to Crane that Huttig
has no plan or intention to undertake any of the transactions set forth in
Section 5.2(b) nor does Huttig or any member of the Huttig Group have any
intention to cease to engage in the active conduct of its current trade or
business (within the meaning of Section 355(b)(2) of the Code) during the
Restricted Period.
Section 5.2. COVENANTS.
(a) Crane Covenants. Crane hereby agrees that:
(i) Crane shall, and shall cause each member of the Crane Group
to, comply in all material respects with each such representation and statement
concerning Crane and the Crane Group made in the materials submitted to the IRS
in the Ruling Request.
(ii) Crane will, during the Restricted Period, continue the
active conduct of the historic businesses conducted by Crane throughout the
five-year period prior to the Distribution.
(iii) Crane will not, nor will it permit any member of the Crane
Group to, take any action inconsistent with the information and representations
furnished to the IRS or any other Taxing Authority in connection with the Ruling
Request (or any comparable pronouncement by a Taxing Authority under applicable
law) with respect to the Distribution, regardless of whether such information
and representations are included in the ruling or pronouncement issued by the
IRS or other Taxing Authority.
(b) Huttig Covenants. Huttig hereby agrees that:
(i) Huttig shall, and shall cause each member of the Huttig Group
to, comply in all material respects with each such representation and statement
concerning Huttig and the Huttig Group made in the materials submitted to the
IRS in the Ruling Request.
(ii) During the Restricted Period, neither Huttig, nor any member
of the Huttig Group conducting an active trade or business relied upon in
connection with the Distribution, will liquidate, merge or consolidate with any
other person without the prior written consent of Crane; provided that the
foregoing shall not be deemed to prohibit Huttig and the members of the Huttig
Group from entering into or acquiring other businesses or operations (subject to
the limitations of this Section 5.2(b)), from disposing of or shutting down
segments of such businesses or undertaking restructurings or reorganizations
within the Huttig Group so long as Huttig and the members of the Huttig Group
continue to engage in such businesses and continue to so maintain a substantial
portion of their assets and business operations as they existed prior to the
Distribution.
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(iii) Huttig will, during the Restricted Period, continue the
active conduct of the historic business conducted by Huttig throughout the
five-year period prior to the Distribution.
(iv) Huttig will not, nor will it permit any member of the Huttig
Group to, take any action inconsistent with the information and representations
furnished to the IRS or any other Taxing Authority in connection with the Ruling
Request (or any comparable pronouncement by a Taxing Authority under applicable
law) with respect to the Distribution, regardless of whether such information
and representations are included in the ruling or pronouncement issued by the
IRS or other Taxing Authority.
(v) Huttig will not repurchase stock of Huttig in a manner
contrary to the requirements of section 4.05(1)(b) of Revenue Procedure 96-30 or
in a manner contrary to the representations made in connection with the Ruling
Request.
(vi) Except as provided in Section 6.2(c), during the applicable
period provided in Section 355(e)(2)(B) of the Code with respect to the
Distribution, Huttig will not enter into any transaction or make any change in
its equity structure (including stock issuances, pursuant to the exercise of
options or otherwise, option grants, the adoption of, or authorization of shares
under, a stock option plan, capital contributions, or acquisitions, but not
including the Distribution) which may cause the Distribution to be treated as
part of a plan pursuant to which one or more persons acquire directly or
indirectly Huttig stock representing a "50-percent or greater interest" in
Huttig within the meaning of Section 355(e)(4)(A) of the Code.
(vii) Huttig shall provide to Crane, on the first business day of
every month during the Restricted Period, a certificate describing any
transaction or change in equity structure described in this Section 5.2.(b) and
any option grants which occurred during the preceding month. Huttig agrees that
Crane is to have no liability for any tax resulting from any action referred to
in this Section 5.2.(b) and agrees to indemnify and hold harmless the Crane
Group against any such tax. Huttig shall also bear all costs incurred in
connection with obtaining any opinion of counsel or in connection with Crane's
determination of whether or not to grant any written consent required under this
Section 5.2.(b).
(c) Permitted Transactions. Following the Distribution Date, Huttig
and its Affiliates may take any action or engage in conduct otherwise prohibited
by Section 5.2 so long as prior to such action or conduct, as the case may be,
Huttig receives either a ruling from the IRS or an Opinion of Counsel in form
and substance reasonably satisfactory to Crane and upon which Crane can rely to
the effect that the proposed action or conduct, as the case may be, will not
cause the Distribution to fail to qualify for the tax treatment requested in the
Ruling Request.
ARTICLE VI
TAX INDEMNIFICATION; TAX CONTESTS
Section 6.1. INDEMNIFICATION.
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(a) Huttig Indemnification. Except as otherwise provided in Section
6.1(b), Huttig and the Huttig Group shall be liable for and shall indemnify,
defend and hold harmless the members of the Crane Group from and against (A) all
Taxes of or attributable to the Huttig Group, the respective assets or
businesses of any member or members of the Huttig Group and any Huttig Tax Item
for any Pre-Distribution Taxable Period, Straddle Period or Post-Distribution
Taxable Period, (B) all liability (as a result of Treasury Regulation Section
1.1502-6(a) or a comparable state, local or foreign law) for Income Taxes of any
person (other than a member of the Crane Group or the Huttig Group) which is or
has ever been affiliated with any member of the Huttig Group or with which any
member of the Huttig Group joins or has ever joined (or is or has ever been
required to join) in filing any consolidated, combined or unitary Tax Return for
any Pre-Distribution Taxable Period or Straddle Period; provided, however, if
any member of the Crane Group also is or ever has been affiliated with or files
or has ever filed (or is or has ever joined in the filing of) any such
consolidated, combined or unitary Tax Return for the same Pre-Distribution
Period or Straddle Period with any such person, then the amount of the liability
under this provision shall be allocated between such member or members of the
Crane Group and the Huttig Group in accordance with the principles described in
Section 4.1(a), (C) all Taxes (including but not limited to Taxes assessed by
reason of the Distribution failing to qualify for tax-deferred treatment under
Code (sections) 355) for any taxable 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 Huttig Group of any representation, warranty or obligation
made by Huttig under this Agreement, the Distribution Agreement or the Ruling
Request and (D) all liability for any reasonable legal, accounting, appraisal,
consulting or similar fees and expenses relating to the foregoing.
(b) Crane Indemnification. Except as otherwise provided in Section
6.1(a), Crane and the Crane Group shall be liable for and shall indemnify,
defend and hold harmless the Huttig Group from and against (A) all Taxes
attributable to the Crane Group, the respective assets or businesses of any
member or members of the Crane Group and any Crane Tax Item for any
Pre-Distribution Taxable Period, Straddle Period or Post-Distribution Taxable
Period, (B) all liability (as a result of Treasury Regulation Section
1.1502-6(a) or a comparable state, local or foreign law) for Income Taxes of any
person (other than a member of the Crane Group or the Huttig Group) which is or
has ever been affiliated with any member of the Crane Group or with which any
member of the Crane Group joins or has ever joined (or is or has ever been
required to join) in filing any consolidated, combined or unitary Tax Return for
any Pre-Distribution Taxable Period or Straddle Period; provided, however, if
any member of the Huttig Group also is or ever has been affiliated with or files
or has ever filed (or is or has ever joined in the filing of) any such
consolidated, combined or unitary Tax Return for the same Pre-Distribution
Period or Straddle Period with any such person, then the amount of the liability
under this provision shall be allocated between such member or members of the
Crane Group and the Huttig Group in accordance with the principles described in
Section 4.1(a), (C) all Taxes for any taxable 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 Crane Group of any representation, warranty or
obligation made by Crane under this Agreement, the Distribution Agreement or the
Ruling Request and (D) all liability for any reasonable legal, accounting,
appraisal, consulting or similar fees and expenses relating to the foregoing.
15
(c) Payments. Subject to Section 6.5(b), any indemnity payment
required to be made pursuant to this Section 6.1 shall be paid within 30 days
after the indemnified party makes written demand upon the indemnifying party,
but in no case earlier than five business days prior to the date on which the
relevant Taxes are required to be paid (or would be required to be paid if no
such Taxes are due) to the relevant Taxing Authority.
Section 6.2. NOTICE OF INDEMNITY. Whenever any member of the Crane Group
or the Huttig Group, as the case may be, (hereinafter an "Indemnitee") receives
written notice from any Tax Authority or otherwise of any pending or threatened
Tax examination, audit or other administrative or judicial proceeding
(hereinafter a "Tax Contest") which could reasonably be expected to result in a
determination that would increase the liability for any Tax of such member or
any other member of its Group for any Tax Indemnification Period or for any
Post-Tax Indemnification Period or require a payment hereunder to the other
party (hereinafter an "Indemnity Issue"), the Indemnitee shall notify the other
Group (hereinafter the "Indemnitor") of such Indemnity Issue within 30 days of
receipt of such notice. The failure of any Indemnitee to give (or any delay in
giving) such notice shall not relieve any Indemnitor of its obligations under
this Agreement except to the extent that such failure to give (or such delay in
giving) such notice shall have adversely affected the Indemnitor's ability to
defend against, settle, or satisfy any action, suit or proceeding against
Indemnitor, or any damage, loss, claim, or demand for which Indemnitee is
entitled to indemnification from Indemnitor under this Agreement.
Section 6.3. TAX CONTESTS. To the extent that a Tax Contest relates to
any Taxes for which a member of the Huttig Group is directly liable or has
indemnification obligations hereunder, Huttig shall at its own expense control
the defense and settlement of that portion of such Tax Contest. To the extent
that a Tax Contest relates to any Taxes for which a member of the Crane Group is
directly liable hereunder, Crane shall at its own expense control the defense
and settlement of that portion of such Tax Contest. Provided, however, that the
party in control of the Tax Contest shall in no event take any position in any
such proceeding that would subject the party not in control of the defense to
any civil fraud or any civil or criminal penalty, and provided, further, that
the party in control of the Tax Contest shall not consent, without the prior
written consent of the party not in control of the defense, which prior written
consent shall not be unreasonably withheld, to any change in the treatment of
any Tax Item that in any material respect adversely affects the Tax liability of
the party not in control of the defense for a period for which that party is
directly or indirectly liable under this Agreement.
Section 6.4. TIMING ADJUSTMENTS.
(a) 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 Crane or Huttig has, or otherwise would
have had, under Section 6.1 and/or an increase in the amount of a Tax Refund to
which Crane or Huttig is entitled under Section 3.2, then in each Post-Tax
Indemnification Period in which the Crane Group or the Huttig Group Actually
Realizes an Income Tax Detriment, either Crane or Huttig, as the case may be,
shall pay to the other an amount equal to such Income Tax Detriment; provided,
however, that the
16
aggregate payments required to be made under this Section 6.4(a) with respect to
any Timing Difference shall not exceed the aggregate amount of the Income Tax
Benefits realized by the Group from which such payment is made for all taxable
periods and the Group receiving such payment for all Tax Indemnification Periods
as a result of such Timing Difference. All such payments shall be made within 10
days after the relevant Income Tax Detriment has been Actually Realized and the
Group Actually Realizing such Income Tax Detriment notifies the other Group, as
the case may be.
(b) Reverse Timing Differences. If a Tax Audit Proceeding or an
amendment of a Tax Return results in a Reverse Timing Difference, and such
Reverse Timing Difference results in an increase in an indemnity obligation of
Crane or Huttig under Section 6.1 and/or a decrease in the amount of a Tax
Refund to which Crane or Huttig is or would otherwise be entitled to under
Section 3.2, then in each Post-Tax Indemnification Period in which the Crane
Group or the Huttig Group Actually Realizes an Income Tax Benefit, Crane or
Huttig, as the case may be, shall pay to the other an amount equal to such
Income Tax Benefit; provided, however, that the aggregate payments required to
be made under this Section 6.4(b) with respect to any Reverse Timing Difference
shall not exceed the aggregate amount of the Income Tax Detriments realized by
the Group from which such payment is made for all taxable periods and the Group
receiving such payment for all Tax Indemnification Periods as a result of such
Reverse Timing Difference. All such payments shall be made within ten days after
the relevant Income Tax Benefit has been Actually Realized.
Section 6.5. PAYMENTS NET OF TAXES.
(a) Gross Up and Characterization. The amount of any payment under
this Agreement shall be (i) increased to take account of any net Tax cost
incurred by the recipient thereof as a result of the receipt or accrual of
payments hereunder (grossed-up for such increase) and (ii) reduced to take
account of any net Tax benefit realized by the recipient arising from the
incurrence or payment of any such payment, other than any such net Tax benefit
that the recipient is specifically entitled to retain pursuant to this
Agreement. In computing the amount of any such Tax cost or Tax benefit, the
recipient shall be deemed to recognize all other items of income, gain, loss,
deduction or credit before recognizing any item arising from the receipt or
accrual of any payment hereunder. Except as provided in Section 6.5(b), 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 has Actually Realized such cost or
benefit. It is the intention of the parties that payments made pursuant to this
Agreement are to be treated as relating back to the Contribution and
Distribution as an adjustment to the assets and liabilities contributed
thereunder, and the parties shall not take any position inconsistent with such
intention before any Taxing 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.
(b) Time for Payment. Notwithstanding any other provision of this
Agreement, to simplify the administration of this Agreement, the payment of any
amount less
17
than [$150,000] 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 30
days following the close of the calendar quarter during which such payment
obligation arose.
(c) Right to Offset. Any party making a payment under this Agreement
shall have the right to reduce any such payment by any amounts owed to it by the
other party to this Agreement.
ARTICLE VII
COOPERATION AND EXCHANGE OF INFORMATION
Section 7.1. COOPERATION AND EXCHANGE OF INFORMATION. Each party hereto,
on behalf of itself and its Affiliates, agrees to provide the other parties
hereto with such cooperation and information as such other parties shall
reasonably request, and as promptly as practicable, in connection with the
preparation or filing of any Tax Return or claim for or allocation of a Tax
Refund not inconsistent with this Agreement or in conducting any Tax Audit
Proceedings or other proceeding in respect to 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 Crane as an officer of Huttig solely for the
purpose of pursuing refund claims, dealing with Taxing Authorities and defending
Tax Audit Proceedings, in each case if such actions relate to Tax matters
pertaining to or arising in the Tax Indemnification Period, as well as promptly
forwarding copies of appropriate notices and forms or other communications
received from or sent to any Taxing Authority and 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 Taxing Authorities, and records concerning the ownership
and Tax basis of property, which either party may possess and which relate to
the Tax Items on the Tax Returns. Subject to the rights of the Huttig 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 Huttig Group with respect to Tax Returns and Taxes for the Tax
Indemnification Period. Each party to this Agreement shall make, or shall cause
its Affiliates to make, their employees and facilities available on a mutually
convenient basis to provide an explanation of any documents or information
provided hereunder.
Section 7.2. RECORD RETENTION. Crane and Huttig agree 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 ("Tax Records") existing on the
Distribution Date or created through the Distribution Date, for 10 years from
the Distribution Date and (ii) allow the other parties to this Agreement and
their representatives (and representatives of any of its Affiliates), at times
and dates reasonably acceptable to the retaining party, to inspect, review and
make copies of such records, and have access to such employees, as Crane and
Huttig may reasonably deem necessary or appropriate from time to time, such
activities to be conducted during normal business hours and without
18
disruption to the respective business of either party. At the end of the 10-year
period described in clause (i) Crane or Huttig, as the case may be, shall
transfer such records (or cause such records to be transferred) to the other
party (at such other party's sole expense), unless such other party notifies
Crane or Huttig, as the case may be, within 90 days prior to the expiration of
the 10-year period, that such other party does not desire to receive such Tax
Records, in which case Crane or Huttig, as the case may be, may destroy or
otherwise dispose of such undesired documents.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. ENTIRE AGREEMENT. This Tax Allocation Agreement constitutes
the entire agreement, and supersedes all other prior agreements, understandings,
representations and warranties, both written and oral, among the parties, with
respect to the subject matter hereof and thereof.
Section 8.2. MODIFICATION OR AMENDMENT. The parties hereto may modify or
amend this Agreement only by written agreement executed and delivered by duly
authorized officers of the respective parties. Anything in this Agreement or the
Merger Agreement to the contrary notwithstanding, in the event and to the extent
that there shall be a conflict between the provisions of this Agreement and the
Merger Agreement, the provisions of this Agreement shall control.
Section 8.3. RESOLUTION OF DISPUTES. Any disputes between the parties
with respect to this Agreement that cannot be resolved by good faith effort by
the parties shall be submitted to the office of Deloitte & Touche LLP
("Deloitte"), which shall render its opinion as to such matters. Deloitte's
determination shall be final and binding on all parties and Deloitte's fees and
expenses shall be shared by each of Huttig and Crane in accordance with the
final allocation of the Tax liability in dispute.
Section 8.4. NOTICES. Any notice, request, instruction or other
communication to be given hereunder by any party to any other party shall be in
writing and shall be deemed to have been duly given (i) on the date of delivery
if delivered personally, or by telecopy or telefacsimile, upon confirmation of
receipt, (ii) on the first business day following the date of dispatch if
delivered by Federal Express or other nationally reputable next-day courier
service, or (iii) on the third business day following the date of mailing if
delivered by registered or certified mail, return receipt requested, postage
prepaid. All notices hereunder shall be delivered as set forth below, or
pursuant to such other instructions as may be designated in writing by the party
to receive such notice:
(a) If to Huttig:
Gregory D. Lambert
Huttig Sash and Door, Inc.
Lakeview Center, Suite 400
19
145 South Outer Forty Road
Chesterfield, Missouri 63006-1041
(b) if to Crane:
David S. Smith
Crane Co.
100 First Stamford Place
Stamford, Connecticut 06902
Section 8.5. NO THIRD PARTY BENEFICIARIES. Except as otherwise expressly
provided herein, nothing contained in this Agreement is intended to confer upon
any person or entity other than the parties hereto and their respective
successors and permitted assigns, any benefit, right or remedies under or by
reason of this Agreement.
Section 8.6. ASSIGNMENT. No party to this Agreement shall convey, assign
or otherwise transfer any of its rights or obligations under this Agreement
without the express written consent of the other parties hereto in their sole
and absolute discretion. Any such conveyance, assignment or transfer without the
express written consent of the other parties shall be void ab initio. No
assignment of this Agreement shall relieve the assigning party of its
obligations hereunder.
Section 8.7. TERM. This Agreement shall commence on the date of
execution indicated below and shall continue in effect until otherwise agreed to
in writing by Huttig and Crane, or their successors.
Section 8.8. CAPTIONS. The Article, Section and paragraph captions
herein are for convenience of reference only, do not constitute part of this
Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof.
Section 8.9. 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, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon any such determination, the parties shall 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 8.10. SPECIFIC PERFORMANCE. In the event of any actual or
threatened default in, or breach of, any of the terms, conditions and provisions
of this Agreement, the party or parties who are or are to be thereby aggrieved
shall have the right of specific performance and injunctive relief giving effect
to its or their rights under this Agreement, in addition to any and all other
rights and remedies at law or in equity, and all such rights and remedies shall
be cumulative. The
20
parties agree that the remedies at law for any breach or threatened breach,
including monetary damages, are inadequate compensation for any loss and that
any defense in any action for specific performance that a remedy at law would be
adequate is waived.
Section 8.11. COUNTERPARTS. For the convenience of the parties, this
Agreement may be executed in any number of separate counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
shall together constitute the same agreement.
Section 8.12. GOVERNING LAW. This Agreement shall 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 8.13. AGENT. Any consent rights of members of the Huttig Group
under this Agreement shall be exercised by Huttig on behalf of the Huttig Group,
and any notices given by the Crane Group to Huttig shall be deemed to be given
to each member of the Huttig Group. Any consent rights of the Crane Group under
this Agreement shall be exercised by Crane on behalf of the Crane Group on
behalf of the Crane Group, and any notices given by Huttig to Crane shall be
deemed to be given to each member of the Crane Group.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto on the date first
hereinabove written.
CRANE CO.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HUTTIG BUILDING PRODUCTS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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