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EXHIBIT 10.2
TAX ALLOCATION AGREEMENT
DATED AS OF SEPTEMBER 30, 2005
BY AND BETWEEN
AMERICAN EXPRESS COMPANY
AND
AMERIPRISE FINANCIAL, INC.
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ARTICLE I
DEFINITIONS AND STANDARDS
Section 1.01. Definitions................................................. 2
Section 1.02. General Interpretive Principles............................. 8
Section 1.03. Applicable Standards........................................ 8
ARTICLE II
U.S. CONSOLIDATED FEDERAL INCOME TAX LIABILITIES
Section 2.01. Pre-2005 Taxable Years...................................... 8
Section 2.02. 2005 Taxable Year........................................... 9
Section 2.03. U.S. Federal Alternative Minimum Tax........................ 10
ARTICLE III
U.S. COMBINED STATE AND LOCAL INCOME TAX LIABILITIES
Section 3.01. Returns Covered............................................. 11
Section 3.02. Pre-2005 Taxable Years...................................... 11
Section 3.03. Net Operating Losses........................................ 11
Section 3.04. 2005 Taxable Year........................................... 11
Section 3.05. Estimated Taxes, Etc........................................ 11
Section 3.06. Adjustments................................................. 12
ARTICLE IV
SEPARATE TAX RETURN OBLIGATIONS
Section 4.01. Ameriprise Tax Liability.................................... 12
Section 4.02. AXP Tax Liability........................................... 12
Section 4.03. Separate Return Adjustments................................. 12
ARTICLE V
TAX-FREE STATUS OF DISTRIBUTION
Section 5.01. Tax-Free Status Ruling, Etc................................. 13
Section 5.02. Maintaining Status of Active Business....................... 13
Section 5.03. Limits on Proposed Acquisition Transactions, Etc............ 13
Section 5.04. Twenty Five Percent Proposed Acquisition Transactions....... 14
Section 5.05. Indemnity................................................... 14
ARTICLE VI
DUAL CONSOLIDATED LOSSES
Section 6.01. Ameriprise Liability........................................ 15
Section 6.02. Recapture Taxes............................................. 15
Section 6.03. Closing Agreement........................................... 15
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ARTICLE VII
CARRYOVER AND CARRYBACK ITEMS
Section 7.01. Carryovers to Post-Affiliation Years........................ 15
Section 7.02. Carrybacks from Post-Affiliation Years...................... 16
ARTICLE VIII
U.S. FEDERAL INCOME TAX ADJUSTMENTS
Section 8.01. Determination............................................... 16
Section 8.02. Payments.................................................... 16
Section 8.03. Procedures.................................................. 17
Section 8.04. Intercompany Adjustments.................................... 17
ARTICLE IX
U.S. FEDERAL INCOME TAX PROCEEDINGS
Section 9.01. Ameriprise and AXP Issues................................... 17
Section 9.02. Procedures.................................................. 17
Section 9.03. Control of Issues........................................... 18
Section 9.04. Options for Resolution...................................... 18
Section 9.05. Forum for Judicial Proceedings.............................. 19
Section 9.06. Settlement of Claims........................................ 19
ARTICLE X
PAYMENTS
Section 10.01. Reporting of Indemnity Payments, Etc........................ 19
Section 10.02. Interest on Late Payments................................... 19
ARTICLE XI
TAX RETURNS
Section 11.01. Cooperation and Furnishing of Tax Return Information........ 19
Section 11.02. Preparation of Tax Returns.................................. 20
ARTICLE XII
POST-AFFILIATION YEARS AND POST-COMBINED YEARS
Section 12.01. Returns..................................................... 21
Section 12.02. Actions or Transactions..................................... 21
Section 12.03. Proposed Adjustments........................................ 21
ARTICLE XIII
BOOKS AND RECORDS
Section 13.01. Retention Period............................................ 21
Section 13.02. Record Retention Policy..................................... 21
Section 13.03. Tax Attributes.............................................. 21
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ARTICLE XIV
COMPENSATION AND EMPLOYEE BENEFITS
Section 14.01. General..................................................... 22
Section 14.02. AXP Stock-Based Awards...................................... 22
Section 14.03. Reporting of Deductions..................................... 22
Section 14.04. Employment Taxes and Tax Reporting.......................... 22
Section 14.05. Determinations.............................................. 22
ARTICLE XV
MISCELLANEOUS
Section 15.01. Notices..................................................... 22
Section 15.02. Complete Agreement; Representations......................... 23
Section 15.03. Amendment, Modification, or Waiver.......................... 24
Section 15.04. Severability................................................ 24
Section 15.05. No Assignment; Binding Effect; No Third-Party
Beneficiaries............................................... 24
Section 15.06. Headings.................................................... 24
Section 15.07. Counterparts................................................ 24
Section 15.08. Governing Law............................................... 24
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FORM OF TAX ALLOCATION AGREEMENT
This TAX ALLOCATION AGREEMENT, dated as of this 30th day of September, 2005
(this "Agreement"), is between American Express Company, a New York corporation
("AXP"), and Ameriprise Financial, Inc., a Delaware corporation ("Ameriprise,"
and together with AXP, each a "Party" and collectively, the "Parties"). AXP has
its executive office at American Express Tower, 3 World Financial Center, 200
Vesey Street, New York, New York 10285. Ameriprise has an executive office at
707 2nd Avenue, South, Minneapolis, Minnesota 55474.
WHEREAS, the Board of Directors of AXP has determined that it is in the best
interests of AXP to separate the Ameriprise Business (as defined below) and the
AXP Business (as defined below) into two independent public companies, on the
terms and subject to the conditions set forth in the Separation Agreement (as
defined below), in order to resolve issues related to the allocation of capital
and management resources between the Ameriprise Business and the AXP Business,
and to give Ameriprise greater flexibility to manage, invest in, and expand the
Ameriprise Business while ensuring that AXP can focus its time and resources on
the development of the AXP Business;
WHEREAS, in order to effectuate the foregoing, AXP and Ameriprise have
entered into a Separation and Distribution Agreement, dated as of August 24,
2005, (the "Separation Agreement"), pursuant to which and subject to the terms
and conditions set forth therein, the Ameriprise Business shall be separated
from the AXP Business and the Ameriprise Common Stock (as defined below) shall
be distributed on a pro rata basis to AXP shareholders;
WHEREAS, for U.S. federal income Tax purposes, from January 13, 1984,
through the Distribution Date (defined below) of the Distribution (defined
below), income of certain present and former members of the Ameriprise Group
(defined below) has been or will be included in AXP Consolidated Returns
(defined below) and, from January 1, 1990, through the Distribution Date, income
of certain life insurance companies subject to tax under section 801 of the Code
(defined below), that are or were part of the Ameriprise Group, has been or will
be included in AXP Consolidated Returns;
WHEREAS, certain Ameriprise Combined Group (defined below) members have
filed or will file Combined Returns (defined below) covering U.S. state and
local income Taxes with AXP Combined Groups (defined below) as part of their
respective Total Combined Groups (defined below);
WHEREAS, Ameriprise and other members of the Ameriprise Group will cease to
be members of the AXP Group for U.S. federal income Tax purposes after the
Distribution Date, and Ameriprise and other members of Ameriprise Combined
Groups will cease to be members of their respective Total Combined Groups for
U.S. state and local income Tax purposes after the Distribution Date;
WHEREAS, the failure of the Distribution to have a Tax-Free Status (defined
below) or certain actions taken with respect to Ameriprise Capital Stock
(defined below) could subject AXP and its shareholders to additional Tax costs
in connection with the Distribution; and
WHEREAS, AXP and Ameriprise desire in this Agreement to (i) set forth Tax
allocation principles for Affiliation Years for U.S. federal income Tax purposes
and Combined Years for U.S. state and local income Tax purposes, which, except
to the extent provided herein, will supersede all prior policies and procedures
governing the allocation of Taxes, (ii) define the effects upon the settlement
and allocation of certain Tax liabilities and Tax benefits of transactions or
developments that occur during taxable years commencing after the Distribution
Date, (iii) set forth the responsibility for their respective stand-alone income
and other Tax liabilities, and (iv) allocate liability for certain Tax costs
that may be incurred in connection with the Distribution.
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NOW, THEREFORE, in consideration of the foregoing, the promises and
covenants set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, AXP and Ameriprise
hereby agree as follows:
ARTICLE I
DEFINITIONS AND STANDARDS
SECTION 1.01. Definitions. For all purposes of this Agreement, the
following terms shall have the following meanings:
"2004 Excess AXP Group Benefits" shall mean the term as defined in
Section 2.01.
"2004 Tax Liability" shall mean the term as defined in Section 2.01.
"2004 Tax Year" shall mean the term as defined in Section 2.01.
"2005 Excess AXP Group Benefits" shall mean the term as defined in
Section 2.02.
"2005 Tax Liability" shall mean the term as defined in Section 2.02.
"2005 Tax Year" shall mean the term as defined in Section 2.02.
"Additional Excess Items" shall mean the term as defined under "Excess AXP
Group Benefits."
"Adjusted Separate Ameriprise Group Federal Tax Liability" shall mean with
respect to any Affiliation Year(s) the U.S. federal income Tax liability of the
Ameriprise Group, as determined by AXP in good faith, applying the Highest
Federal Tax Rate, computed as if the Ameriprise Group (with Ameriprise as the
common parent) filed a consolidated U.S. federal income Tax Return separately
from the AXP Group ("Ameriprise Consolidated Return"), and applying such U.S.
Tax laws and regulations as would have been applicable to the Ameriprise Group
if it had so filed separately, but not taking into account any items that are
predicated on base amounts determined on a consolidated basis such as research
Credits, subject to the following:
(i) the Ameriprise Group shall be treated as bound by all accounting
methods, elections and other determinations adopted or made by AXP for the
AXP Group for all Affiliation Years, including, but not limited to,
determinations made in respect of carrybacks and carryovers;
(ii) the Ameriprise Group shall be permitted to reduce its Adjusted
Separate Ameriprise Group Federal Tax Liability (but not below zero) to the
extent that AXP determines that the AXP Group is able to reduce its U.S.
federal income Tax liability in the AXP Consolidated Return for such
Affiliation Year by utilizing items of deduction, loss, or Credit of the
Ameriprise Group which AXP determines the Ameriprise Group would have been
unable to utilize if it had filed an Ameriprise Consolidated Return ("Excess
Items"); provided, that if there are any limitations in the ability of the
AXP Group to utilize items in the same category as such Excess Items in
their entirety for such year, the Ameriprise Group shall be limited in the
reduction of its Adjusted Separate Ameriprise Group Federal Tax Liability to
its share of such Excess Items, as determined by AXP, on a Proportionate
Basis; provided, further, that if, pursuant to the above provisions, an
Excess Item is not usable, in whole or in part, by the AXP Group in one
Affiliation Year, it may, as determined by AXP in good faith pursuant to
Section 8.03 hereof, be carried over or carried back as an Excess Item to
any other Affiliation Year subject to the same limitations as above; and
(iii) the Ameriprise Group shall take into account the items of
Ameriprise Group income, gain, loss, deduction or Credit attributable to
intercompany items, excess loss accounts, dual consolidated losses and other
items that AXP determines are required to be restored, recaptured or
otherwise triggered as a result of the Distribution or related transactions.
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"Adjustment" shall mean, with respect to any Affiliation Year, any change in
actual Tax liability from the Tax liability reported on an AXP Consolidated
Return, including changes attributable to amended Tax Returns, deficiencies
asserted by a Taxing authority, overpayments, and claims for refund, and changes
required by application of the Code and Treasury Regulations including, but not
limited to, changes required pursuant to Treasury Regulations Section 1.1502-47
(setting forth consolidated return rules applicable to life-non-life groups),
and Taxing authority audits, examinations, proceedings or litigation resulting
from any of the foregoing events (collectively, "Adjustment Events"). Adjustment
shall mean with respect of any Combined Year in which an Ameriprise Combined
Group files a Combined Return with an AXP Combined Group as part of a Total
Combined Group, any change in the actual Tax liability of the applicable Total
Combined Group, including changes attributable to Adjustment Events.
"Affiliate" shall mean any entity that is directly or indirectly controlled
by the person in question. For this purpose, "control" shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and the policies of a person, whether through
ownership of voting securities, by contract or otherwise. "Ameriprise Affiliate"
shall mean an Affiliate of Ameriprise. "AXP Affiliate" shall mean an Affiliate
of AXP other than Ameriprise and Ameriprise Affiliates.
"Affiliation Year" shall mean each taxable year, or portion thereof, with
respect to which any member of the Ameriprise Group joined or will join the AXP
Group in the filing of an AXP Consolidated Return.
"Ameriprise AMT Liability" shall mean the term as defined in Section 2.03.
"Ameriprise Business" means the business and operations conducted by the
Ameriprise Group from time to time, whether prior to, at or after the Effective
Time, including the business and operations conducted by the Ameriprise Group,
as more fully described in the Information Statement; provided that "Ameriprise
Business" shall not include AMEX Assurance.
"Ameriprise Capital Stock" shall mean all classes or series of stock of
Ameriprise and all options, warrants, derivatives, rights to acquire stock, and
other interests and instruments taken into account for purposes of determining a
Fifty-Percent or Greater Interest in Ameriprise.
"Ameriprise Combined Group" shall mean an affiliated group of corporations
(as constituted from time to time), consisting of Ameriprise and/or its directly
or indirectly owned subsidiaries, that AXP determines will join in filing a
Combined Return with an AXP Combined Group.
"Ameriprise Common Stock" shall mean the term as defined under
"Distribution."
"Ameriprise Group" shall mean the affiliated group of corporations (as
constituted from time to time), consisting of Ameriprise and/or its directly or
indirectly owned subsidiaries, that AXP determines will join in filing an AXP
Consolidated Return.
"Ameriprise Group State Tax Liability" shall mean the term as defined in
Section 3.02.
"Ameriprise Issues" shall mean the term as defined in Section 9.01.
"Ameriprise Separate AMT" shall mean the term as defined in Section 2.03.
"Ameriprise Unsettled Issues" shall mean the term as defined in
Section 9.03.
"AMT" shall mean the term as defined in Section 2.03.
"Article IX Taxes" shall mean the term as defined in Section 9.03.
"AXP AMT Liability" shall mean the term as defined in Section 2.03.
"AXP Business" means all businesses and operations of the AXP Group, other
than the Ameriprise Business.
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"AXP Combined Group" shall mean an affiliated group of corporations (as
constituted from time to time) owned directly or indirectly by AXP that AXP
determines will join in filing a Combined Return excluding members of an
Ameriprise Combined Group.
"AXP Consolidated Return" shall mean a consolidated U.S. federal income Tax
Return filed by AXP on behalf of the AXP Group.
"AXP Excess Issue" shall mean the term as defined in Section 9.04.
"AXP Group" shall mean the affiliated group of corporations (as constituted
from time to time), of which AXP is the common parent, that AXP determines will
join in filing an AXP Consolidated Return.
"AXP Issues" shall mean the term as defined in Section 9.01.
"AXP LOIs", "AXP Options" and "AXP Restricted Stock" shall have the meanings
ascribed to them in the Employee Benefits Agreement by and between AXP and
Ameriprise dated as of September 30, 2005.
"AXP Stock-Based Awards" shall mean AXP LOIs, AXP Options and/or AXP
Restricted Stock.
"Board Certificate" shall mean the term as defined in Section 5.04.
"Closing Agreement" shall mean the term as defined in Section 6.01.
"Code" shall mean the Internal Revenue Code of 1986, as amended. Any
references herein to sections of the Code or Treasury Regulations promulgated
thereunder shall include any successor provisions thereto.
"Combined Return" shall mean a combined or unitary U.S. state or local
income, franchise, or gross receipts Tax Return.
"Combined State" shall mean a U.S. state or locality requiring or permitting
the filing of a Combined Return.
"Combined Year" shall mean a taxable year (or portion thereof) in which an
AXP Combined Group files a Combined Return with an Ameriprise Combined Group.
"Credits" shall mean all of the credits against U.S. federal income Tax or,
as applicable, against U.S. state or local Tax. Credits shall include, but not
be limited to, foreign Tax credits, research credits, low-income housing
credits, investment Tax credits and targeted job credits.
"Distribution" shall mean the distribution on a PRO RATA basis to holders of
issued and outstanding shares of common stock, par value $0.20 per share, of
AXP, other than shares of AXP common stock held in the treasury of AXP, of all
of the issued and outstanding shares of Ameriprise common stock, par value $0.01
per share ("Ameriprise Common Stock"), beneficially owned by AXP, by means of a
dividend of such Ameriprise Common Stock to such shareholders.
"Distribution Date" shall mean the date on which the Distribution shall be
effected, such date to be determined by, or under the authority of, the Board of
Directors of AXP in its sole and absolute discretion.
"Dual Consolidated Loss" shall mean the term as defined in Section 6.01.
"Effective Time" means the time at which the Distribution occurs on the
Distribution Date.
"Estimated State Taxes" shall mean the term as defined in Section 3.05.
"Evaluation" shall mean the term as defined in Section 9.03.
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"Excess AXP Group Benefits" shall mean the amount by which AXP determines
that AXP was able to reduce its U.S. federal income Tax liability in the AXP
Consolidated Return for an Affiliation Year by use of Excess Items (as defined
above under "Adjusted Separate Ameriprise Group Federal Tax Liability") which
would reduce the Adjusted Separate Ameriprise Group Federal Tax Liability for
such year, if zero, below zero ("Additional Excess Items"). Use of Additional
Excess Items shall otherwise be subject to the same limitations and other
provisions applicable to the use of Excess Items, as determined by AXP in good
faith.
"Exercised AXP Options" shall mean the term as defined in Section 14.02.
"Fifty-Percent or Greater Interest" shall mean a "50-percent or greater
interest" for purposes of Sections 355(d) and (e) of the Code and the Treasury
Regulations promulgated thereunder.
"Final Determination" shall mean a final settlement with a Taxing authority
that is binding on all Parties or, if applicable, a final judicial decision upon
the expiration of the time for the decision to be appealed, with respect to the
items in question.
"Foreign Attribute" shall mean any item of income, gain, loss or deduction
or any asset or liability relevant to the computation of taxable income from
sources without the United States and any item of Credit described in
Section 901 of the Code (without regard to the limitation of Section 904 of the
Code).
"Fund Management Business" shall mean the business of Ameriprise so
designated, as described in the request for rulings from the IRS in respect of
the Distribution and related matters, dated February 27, 2005, as supplemented
from time to time.
"Highest Combined Tax Rate" for the taxable year in question shall mean the
sum of (i) the Highest Federal Tax Rate, and (ii) in the case of a corporation,
the average, weighted by jurisdiction, of the highest U.S. state and local
income, franchise, and gross receipts Tax rates that would be applicable to such
a corporation (net of any U.S. federal income Tax benefit), or in the case of a
Person other than a corporation, the highest U.S. state and local income Tax
rates (net of any U.S. federal income Tax benefit) that would be applicable to
such Person or the beneficial owner(s) of such Person.
"Highest Federal Tax Rate" for the taxable year in question shall mean
(i) in the case of a corporation, the highest U.S. federal income Tax rate
applicable to a corporation, or (ii) in the case of a Person other than a
corporation, the highest U.S. federal income Tax rate that would be applicable
to such Person or the beneficial owner(s) of such Person.
"Income Tax Benefit" shall mean the amount of the Tax savings realized by
the applicable group, as determined by AXP in good faith. Such amount shall be
determined by comparing (i) the actual U.S. federal income Tax liability and the
corresponding U.S. state and local income Tax liability (net of any federal Tax
benefit) of the applicable group for the taxable year in question without giving
effect to the items in question with (ii) the actual U.S. federal income Tax
liability and the corresponding U.S. state and local Tax liability (net of any
federal Tax benefit) of the applicable group for such year after giving full
effect to such items. An Income Tax Benefit shall be deemed to be realized at
the time that the applicable group receives a refund or credit for refund from
the relevant Taxing authority.
"Income Tax Detriment" shall mean the amount of additional Tax incurred by
the applicable group, as determined by AXP in good faith. Such amount shall be
determined by comparing (i) the actual U.S. federal income Tax and the
corresponding U.S. state and local Tax liability (net of any U.S. federal income
Tax benefit) of the applicable group for the taxable year in question after
giving full effect to the items in question with (ii) the actual U.S. federal
income Tax and the corresponding U.S. state and local Tax liability (net of any
U.S. federal income Tax benefit) of the applicable group without giving effect
to such items. Unless otherwise provided herein, an Income Tax Detriment shall
be deemed to be incurred at such time as payment is made to the relevant Taxing
authority upon a Final
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Determination of items in questions. In computing the Tax liability of the AXP
Group for purposes of clause (i) of the second sentence of this definition or
clause (ii) of the second sentence of the definition of "Income Tax Benefit"
above, increases or decreases in the U.S. federal, state or local income Tax
liability of the AXP Group attributable to the effect on AXP's (or any AXP
subsidiary's) basis in the stock of any member of the Ameriprise Group will not
be taken into account.
"IRS" shall mean the U.S. Internal Revenue Service.
"IRS Agreement" shall mean the term as defined in Section 9.04.
"Minimum Tax Credit" shall mean the term as defined in Section 2.03.
"New AXP Issues" shall mean the term as defined in Section 9.04.
"NOLs" shall mean the term as defined in Section 3.03.
"Person" shall mean an individual or a partnership, corporation, limited
liability company, association, joint stock company, trust, joint venture,
unincorporated organization, or other entity, without regard to whether such
entity is treated as disregarded for U.S. federal income Tax purposes.
"Post-Affiliation Year" shall mean a taxable period after the Distribution
Date during which Ameriprise and its subsidiaries do not join the AXP Group in
the filing of an AXP Consolidated Return.
"Post-Combined Year" shall mean a taxable period after the Distribution Date
during which Ameriprise and its subsidiaries do not join a Total Combined Group
in the filing of a Combined Return with an AXP Combined Group.
"Proportionate Basis" shall mean, with respect to an item or items
attributable to a particular member or members of the Ameriprise Group, the
determination of the portion of such items based on the total value of such
items over the total value of all items in the same category for the entire AXP
Group for the same Affiliation Year of the AXP Group, subject to any appropriate
Adjustments thereto, as determined by AXP in good faith.
"Proposed Acquisition Transaction" shall mean a transaction or series of
transactions (or any agreement, understanding or arrangement, within the meaning
of Section 355(e) of the Code and the Treasury Regulations promulgated
thereunder, to enter into a transaction or series of transactions), as a result
of which Ameriprise would merge or consolidate with any other Person or as a
result of which any Person or any group of Persons would (directly or
indirectly) acquire, or have the right to acquire through the acquisition of an
option or otherwise, from Ameriprise and/or one or more holders of Ameriprise
Capital Stock, an amount of Ameriprise Capital Stock that would, when combined
with any other changes in ownership of Ameriprise Capital Stock pertinent for
purposes of Section 355(e) of the Code and the Treasury Regulations promulgated
thereunder, comprise 40% or more of (A) the value of all outstanding Ameriprise
Capital Stock as of the date of such transaction, or in the case of a series of
transactions, the date of the last transaction of such series, or (B) the total
combined voting power of all outstanding Ameriprise Capital Stock as of the date
of such transaction, or in the case of a series of transactions, the date of the
last transaction of such series. For purposes of determining whether a
transaction constitutes an indirect acquisition for purposes of the first
sentence of this definition, any recapitalization resulting in a shift of voting
power or any redemption of shares of stock shall be treated as an indirect
acquisition of shares of stock by the non-exchanging shareholders. This
definition and the application thereof is intended to monitor compliance with
Section 355(e) of the Code and the Treasury Regulations promulgated thereunder
and shall be interpreted accordingly by AXP in good faith.
"RAR" shall mean the term as defined in Section 9.02.
"Recapture Taxes" shall mean the term as defined in Section 6.02.
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"Representation Letters" shall mean the term as defined in Section 5.01.
"Section 7.02 Claims" shall mean claims for refund attributable to items
described in and filed pursuant to Section 7.02 of this Agreement.
"SFAS Exercised AXP Options" shall mean the term as defined in
Section 14.02.
"Tax" or "Taxes" shall mean any tax, assessment, duty, fee or other charge
imposed or collected by any government or political subdivision thereof or any
taxing authority thereunder, including but not limited to, any income, gross
income, gross receipts, profits, capital stock, franchise, withholding, payroll,
social security, premium, guarantee fund, workers compensation, unemployment,
disability, property, AD VALOREM, stamp, excise, severance, occupation, service,
sales, use, license, lease, transfer, import, export, value added, minimum,
alternative minimum, estimated or other tax (including any assessment, duty, fee
or other charge in the nature of or in lieu of any such tax), and any interest,
penalties, additions to tax, or additional amounts in respect of the foregoing.
"Tax Advisor" shall mean a United States law or accounting firm of national
standing in the field of taxation selected by AXP.
"Tax-Free Status" shall mean the qualification of the Distribution and
related transactions as a distribution in which no gain or loss is recognized,
and no amount is includible in income, for U.S. federal income Tax purposes
(other than intercompany items, excess loss accounts or other items required to
be taken into account pursuant to the Treasury Regulations promulgated under
Section 1502 of the Code).
"Tax-Related Losses" shall mean (i) all U.S. federal, state and local Taxes
payable pursuant to any Final Determination or otherwise; (ii) all professional
fees, and court costs incurred in connection with such Taxes; and (iii) all
costs, expenses and damages associated with stockholder litigation or
controversies, including but not limited to, any amount paid by AXP or any AXP
Affiliate in respect of the liability of shareholders, whether paid to
shareholders, the IRS, any other Taxing authority, or any other person or
entity, in each case, arising from the Distribution and related transactions
failing to have Tax-Free Status in any manner.
"Tax Return" shall mean any Tax return (including any amended return),
report, information return, election, notice or other document filed or to be
filed with a Taxing authority, including any schedules or related or supporting
information.
"Total Combined Group" shall mean, with respect to any U.S. jurisdiction
that requires or permits the filing of a Combined Return, the affiliated group
of corporations (as constituted from time to time), that AXP determines will
join in the filing of such Combined Return, that includes an AXP Combined Group
and an Ameriprise Combined Group.
"TPIs" shall mean the term as defined in Section 2.03.
"Treasury Regulations" shall mean U.S. Treasury regulations issued under the
Code.
"Twenty Five Percent Proposed Acquisition Transaction" shall mean any
transaction or series of transactions that is not a Proposed Acquisition
Transaction but would be a Proposed Acquisition Transaction if the percentage
reflected in the definition of Proposed Acquisition Transaction were 25% instead
of 40%.
"Unqualified Tax Opinion" shall mean an unqualified "will" opinion of a law
firm of nationally recognized standing in the field of taxation, which opinion
is acceptable to AXP and on which AXP may rely to confirm that a transaction
will not affect the Tax-Free Status, including confirmation that may be provided
for purposes of avoiding any applicable penalties or additions to Tax. Any such
opinion shall assume that the Distribution and related transactions would have
qualified for Tax-Free Status had the transaction in question not occurred.
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"Vesting Period" shall mean the period from and including the date on which
an AXP Stock-Based Award is granted, to and including the date on which such
award is first exercisable (in the case of AXP Options) or vests, whichever
occurs first. For these purposes, an AXP Stock-Based Award will be deemed to be
vested when it is considered vested in accordance with the applicable retirement
practice and policies of AXP.
"Vesting Ratio" shall mean the ratio of the number of days during a Vesting
Period that an entity was a direct employer of record of a holder of an AXP
Stock-Based Award over the total number of days in the Vesting Period; provided,
however, that no more than one entity will be deemed to be a direct employer of
a holder on any given day.
SECTION 1.02. General Interpretive Principles. (a) Words in the singular
shall include the plural and vice versa, and words of one gender shall include
the other gender, in each case, as the context requires, (b) the term "hereof,"
"herein," "hereunder," and "herewith" and words of similar import shall, unless
otherwise stated, be construed to refer to this Agreement and not to any
particular provision of this Agreement, and any references to Article, Section,
paragraph, exhibit and schedule are references to the Articles, Sections,
paragraphs, exhibits and schedules to this Agreement unless otherwise specified,
(c) the word "including" and words of similar import when used in this Agreement
shall mean "including, without limitation," unless otherwise specified and
(d) any reference to any federal, state, local or non-U.S. statute or law shall
be deemed to also refer to all rules and regulations promulgated thereunder,
unless the context otherwise requires.
SECTION 1.03. Applicable Standards. Except as otherwise specifically
provided herein, this Agreement shall supersede in all respects any and all
policies and procedures governing the allocation of Tax liability among the
members of the AXP Group or the Total Combined Groups. Except as otherwise
specifically provided hereunder, all determinations and actions required under
this Agreement will be taken by AXP and shall be made in good faith taking into
account, among other factors, the goal of reducing the aggregate Taxes of the
Parties. It is the intention of the Parties that this Agreement shall be
administered in a manner so that the allocation of income, deduction, loss or
Credit between the Parties will produce Tax consequences for the Parties, on a
current, carryback and carryover basis, that are consistent with those that are
required by the Code and Treasury Regulations.
ARTICLE II
U.S. CONSOLIDATED FEDERAL INCOME TAX LIABILITIES
SECTION 2.01. Pre-2005 Taxable Years. (a) AMERIPRISE AND AXP TAX
LIABILITIES. Ameriprise shall be responsible for, and shall indemnify and hold
AXP and the AXP Affiliates harmless against, the U.S. federal income Tax
liability of the Ameriprise Group for all taxable years ending on or before
December 31, 2004, including the "2004 Tax Liability" (defined below).
Ameriprise shall be liable for and pay AXP the Adjusted Separate Ameriprise
Group Federal Tax Liability for each such Affiliation Year. AXP shall pay
Ameriprise, but Ameriprise shall remain liable for, Excess AXP Group Benefits,
if any, for any such year if the Adjusted Separate Ameriprise Group Federal Tax
Liability for such year is zero. The "2004 Tax Liability" is the Adjusted
Separate Ameriprise Group Federal Tax Liability for the taxable year ending on
December 31, 2004 ("2004 Taxable Year").
(b) 2004 TAX LIABILITY. On or after the day AXP files the AXP Consolidated
Return for the 2004 Taxable Year, AXP shall determine the amount of the 2004 Tax
Liability or any Excess AXP Group Benefits for such year ("2004 Excess AXP Group
Benefits"). Ameriprise shall pay to AXP or AXP shall pay to Ameriprise an amount
equal to the difference between (i) the 2004 Tax Liability and (ii) the sum of
any payments previously made by Ameriprise to AXP with respect to the 2004 Tax
Liability, reduced (to and below zero) by the sum of any payments previously
made or to be made by AXP to Ameriprise in respect of any 2004 Excess AXP Group
Benefits. Payment by Ameriprise is due within five (5) business days after
billing by AXP. Payment by AXP is due within thirty (30) business days of filing
the AXP Consolidated Return for the 2004 Taxable Year.
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SECTION 2.02. 2005 Taxable Year. (a) AMERIPRISE AND AXP TAX LIABILITIES.
Ameriprise shall be responsible and pay AXP for, and shall indemnify and hold
AXP and the AXP Affiliates harmless against, the "2005 Tax Liability" (as
defined below), which shall include, but not be limited to, all liabilities
arising from the triggering of intercompany and other items as described in
clause (iii) of the definition above of "Adjusted Separate Ameriprise Group
Federal Tax Liability." Notwithstanding anything herein to the contrary,
Ameriprise shall be responsible for, and shall indemnify and hold AXP and the
AXP Affiliates harmless against, any Tax liabilities incurred in connection with
the sale of AMEX Assurance Company including, but not limited to, any such
liabilities arising from the triggering of any intercompany items relating to
such sale. AXP agrees to indemnify, and hold Ameriprise and the Ameriprise
Affiliates harmless against, U.S. federal income tax liabilities in respect of
members of the AXP Group (other than members of the Ameriprise Group) under
Treasury Regulations Section 1.1502-6. The "2005 Tax Liability" is the Adjusted
Separate Ameriprise Group Federal Tax Liability for the taxable year beginning
on January 1, 2005 and ending on and including the Distribution Date (the "2005
Taxable Year"). AXP shall pay Ameriprise but Ameriprise shall remain liable for
the Excess AXP Group Benefits, if any, for the taxable year of the AXP Group
ending on December 31, 2005 if the Adjusted Separate Ameriprise Group Federal
Tax Liability is zero under the preceding sentence ("2005 Excess AXP Group
Benefits"). In determining the 2005 Tax Liability or 2005 Excess AXP Group
Benefits, if applicable, Ameriprise will be credited with any losses or
reduction in gain attributable to the sale of its interest in American Express
International Deposit Company, a Cayman Islands company, to AXP, but only to the
extent AXP determines in good faith that such losses or reduction in gain
(i) reduce the Adjusted Separate Ameriprise Group Federal Tax Liability or
result in Excess AXP Group Benefits for the appropriate periods, and
(ii) exceed $15.7 million.
(b) ESTIMATED PAYMENTS, ETC. From and after the date of this Agreement,
Ameriprise shall pay to AXP no later than the day before each due date for the
payment of quarterly estimated U.S. federal income Taxes for the taxable year of
the AXP Group ending on December 31, 2005 and the payment due on March 15, 2006,
as determined in good faith by AXP, the difference, if any, between (A) the 2005
Tax Liability due, determined in good faith by AXP, based on the method for
making estimated payments elected by AXP pursuant to Section 6655 of the Code,
and (B) the sum of any payments previously made by Ameriprise to AXP with
respect to the 2005 Tax Liability.
(c) PAYMENT UPON FILING RETURN. On or after the day that AXP files the AXP
Consolidated Return for the taxable year ending on December 31, 2005, AXP shall
determine the amount of the 2005 Tax Liability or any 2005 Excess AXP Group
Benefits. Ameriprise shall pay to AXP or AXP shall pay to Ameriprise, as the
case may be, the difference between (i) the 2005 Tax Liability and
(ii) (A) the sum of the amounts previously paid by Ameriprise to AXP with
respect to the 2005 Tax Liability, reduced (to and below zero) by (B) the sum of
any payments previously made or to be made by AXP to Ameriprise in respect of
any Excess AXP Group Benefits. Payment by Ameriprise is due within five
(5) business days after billing by AXP. Payment by AXP is due within thirty
(30) business days of filing the AXP Consolidated Return for the taxable year
ending on December 31, 2005.
(d) SETTLING TAX PAYABLE ACCOUNTS. On or before the Distribution Date,
Ameriprise and AXP shall cooperate to settle all Tax payable accounts for all
Affiliation Years and all Combined Years, in accordance with AXP's direction,
based on the most accurate and complete information then available.
(e) ASSIGNMENT OF TAXABLE ITEMS. AXP shall determine the amounts of
income, gain, loss, deduction, and Credit of the Ameriprise Group for the 2005
Taxable Year which are properly includable in the AXP Consolidated Return for
the taxable year of the AXP Group ending on December 31, 2005. For all relevant
purposes of this Agreement, the members of the Ameriprise Group and each
Ameriprise Combined Group shall cease to be members of the AXP Group and their
respective Total Combined Groups, as of the end of the Distribution Date, and
Ameriprise shall cause the books of account of the members of the Ameriprise
Group and the Ameriprise Combined Groups to be closed for accounting and Tax
purposes as of the end of the Distribution Date in accordance with
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AXP's direction. In determining consolidated taxable income for the taxable
period that ends on the Distribution Date, the income and other items of the
Ameriprise Group shall be determined by AXP in good faith in accordance with
Treasury Regulations Section 1.1502-76(b)(1), -76(b)(2)(i) and
- -76(b)(2)(iv) and no election shall be made under 1.1502-76(b)(2)(ii)(D) to
ratably allocate items. However, an allocation shall be made in good faith by
AXP under Treasury Regulations Section 1.1502-76(b)(2)(iii) if such allocation
is determined by AXP in good faith to be necessary to appropriately allocate
income in the event that the Distribution Date occurs on any date other than the
last or first day of any month. Pursuant to Treasury Regulations
Section 1.1502-76(b)(2)(vi), any item of a passthrough entity that is owned by a
member of the Ameriprise Group shall be allocated as if such member sold its
entire interest in the entity immediately before the Distribution. In the event
that a member or members of the Ameriprise Group would be treated as owning an
interest of less than 50% in the aggregate in such passthrough entity, then
pursuant to Treasury Regulations Section 1.706-1(c)(2)(ii), each such member's
share of any distributive items shall be the amount determined by taking into
account the pro rata part of such items that such member would have included in
taxable income had such member remained a partner or owner of the passthrough
entity until the end of the partnership taxable year based on the portion of the
partnership taxable year that has elapsed through the Distribution Date or upon
such other reasonable method that the Parties may agree. All of the foregoing
determinations to be made shall be made in good faith by AXP. Ameriprise and
Ameriprise Affiliates shall file their respective Tax Returns for the taxable
period beginning on the first day after the Distribution Date consistently with
such determinations.
(f) DETERMINING FOREIGN ATTRIBUTES. Without limiting the foregoing, AXP
shall also determine the portion of any Foreign Attribute for the Ameriprise
Group that is allocable to the taxable year ending December 31, 2005, provided,
that such portion to be allocated will not include any amount described in
Section 951(a) of the Code (relating to inclusions in income of controlled
foreign corporation earnings) or any amount described in Section 1293(a) of the
Code (relating to inclusions in income of qualified electing fund earnings), or
any indirect foreign Tax Credit under Sections 960 and 1293(f) of the Code for
foreign income Taxes deemed paid with respect to either of these items, all as
determined by AXP in good faith; and provided, further, that, without the prior
written consent of AXP, Ameriprise and its subsidiaries shall not elect to
recapture an amount of taxable income from sources without the U.S. of any
member of the Ameriprise Group greater than the minimum amount required by
Section 904(f)(1) of the Code for any Affiliation Year. Ameriprise shall provide
AXP with all information it requests to make any determination under this
subsection (f). AXP will likewise share all information with Ameriprise
necessary for Ameriprise to determine its share of the consolidated foreign Tax
Credits for the taxable year ending December 31, 2005 and all prior taxable
years.
SECTION 2.03. U.S. Federal Alternative Minimum Tax. (a) AMERIPRISE TAX
LIABILITY. Notwithstanding any other provision in this Agreement, if, for any
Affiliation Year, the AXP Group is liable for alternative minimum Tax for U.S.
federal income Tax purposes (or any similar U.S. federal Tax) ("AMT") and the
Ameriprise Group would be liable for AMT if it filed a Tax Return as a separate
consolidated group ("Ameriprise Separate AMT"), Ameriprise shall pay to AXP an
amount (the "Ameriprise AMT Liability") determined by AXP equal to the product
of the AMT liability for the AXP Group (the "AXP AMT Liability") and a fraction
(the "Fraction") (x) the numerator of which is the sum of the Tax preference
items and adjustments of the Ameriprise Group relevant for purposes of the
computation of AMT (the "TPIs") for such Affiliation Year and (y) the
denominator of which is the sum of the TPIs of all members of the AXP Group for
such Affiliation Year. The Ameriprise AMT Liability for such Affiliation Year
shall not exceed the amount of the Ameriprise Separate AMT for such Affiliation
Year.
(b) MINIMUM TAX CREDITS. If for any Affiliation Year Ameriprise has paid
to AXP the Ameriprise AMT Liability, AXP shall pay to Ameriprise its
proportionate share (determined below) of the minimum Tax credit for U.S.
federal income Tax purposes (the "Minimum Tax Credit") arising
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from such Affiliation Year which is actually utilized by the AXP Group in a
subsequent Affiliation Year. Ameriprise's proportionate share of such credit for
any Affiliation Year shall be equal to the product of such credit and the
Fraction (defined in subsection (a) above). In no event shall Ameriprise be paid
amounts in the aggregate in respect of such credit in excess of the
corresponding Ameriprise AMT Liability.
ARTICLE III
U.S. COMBINED STATE AND LOCAL INCOME TAX LIABILITIES
SECTION 3.01. Returns Covered. If any member of an AXP Combined Group and
any member of an Ameriprise Combined Group are required to file, or if AXP
elects that any member of an AXP Combined Group and any member of an Ameriprise
Combined Group shall file a Combined Return for any taxable years, or where any
U.S. state or local Taxing authority successfully asserts such a combined filing
requirement, the allocation and settlement of amounts due between the Parties
shall be governed by this Article III.
SECTION 3.02. Pre-2005 Taxable Years. For each taxable year ending on or
before December 31, 2004, AXP shall determine in good faith each Ameriprise
Combined Group's respective share, as determined below, of the total U.S. state
and local Tax liability in each such Combined State. The Ameriprise Combined
Group's share of such total tax liability ("Ameriprise Group State Tax
Liability") will be based on the aggregate apportionment percentage of all
members of the Ameriprise Combined Group, determined with reference only to
those companies that are subject to such state's taxing jurisdiction. The
Ameriprise Group State Tax Liability will include any minimum or similar Taxes
for members of each Ameriprise Combined Group that may be required by the
relevant state or locality. In addition, in determining the Ameriprise Group
State Tax Liability for Minnesota and Nebraska, respectively, AXP will, in good
faith, directly reduce the Ameriprise Group State Tax Liability in Minnesota for
the employer transit pass Credit generated by members of the Ameriprise Combined
Group and the Ameriprise Group State Tax Liability in Nebraska for the
employment Tax Credit generated by members of the Ameriprise Combined Group, but
only if and to the extent such Credit is used to reduce the Tax liability of the
Total Combined Group in Minnesota or Nebraska, as the case may be, for that
year. Ameriprise shall be responsible for and pay to AXP, and shall indemnify
AXP and the AXP Affiliates from and against, the Ameriprise Group State Tax
Liability for each Combined Return for all taxable years ending on or before
December 31, 2004.
SECTION 3.03. Net Operating Losses. Consistent with the approach applied
for operating units of Total Combined Groups, Ameriprise Group State Tax
Liability will not be reduced by, nor will Ameriprise or any other Ameriprise
Combined Group member receive any payment, credit or benefit for, U.S. state or
local net operating losses ("NOLs"), including any carryback or carryover NOLs,
that any such member generates for U.S. state or local income Tax purposes on a
stand-alone basis, whether or not they are used in a Combined Return (except
insofar as such NOLs may reduce the Ameriprise Combined Group's share of the
total U.S. state and local liability for a Total Combined Return).
SECTION 3.04. 2005 Taxable Year. For the taxable year beginning on
January 1, 2005, AXP shall determine in good faith the Ameriprise Combined
Group's share of the total U.S. state and local Tax liability in each Combined
State in the same manner as set forth in Sections 3.02 and 3.03 above, taking
into account the apportionment percentages and other relevant items of each
appropriate Ameriprise Combined Group through the Distribution Date. Ameriprise
shall be responsible for and pay to AXP, and shall indemnify AXP and the AXP
Affiliates from and against, the Ameriprise Group State Tax Liability for all
Combined Returns for the taxable year beginning January 1, 2005.
SECTION 3.05. Estimated Taxes, Etc. For each Combined State, AXP will
determine in good faith the Ameriprise Combined Group's estimated Tax payments
and extension payments (collectively, "Estimated State Taxes"), will prescribe
the information required to be provided by the Ameriprise
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Combined Group to support AXP's preparation and filing of Combined Returns and
payment of Estimated State Taxes, together with a schedule of due dates for
providing of such information and paying its share of Estimated State Taxes, and
Ameriprise will timely and accurately provide and pay the same to AXP. AXP will
calculate in good faith the aggregate Ameriprise Group State Tax Liability for
all Combined States for a Combined Year less a credit for aggregate Estimated
State Taxes paid or determine the refund due to Ameriprise to the extent
aggregate Estimated State Taxes paid by Ameriprise exceed the aggregate
Ameriprise Group State Tax Liability. Payment by Ameriprise is due within
five (5) business days after billing by AXP. Payment of a refund by AXP is due
by November 30 of the year in which Combined State Tax Returns are filed.
SECTION 3.06. Adjustments. (a) If an Adjustment occurs, the Ameriprise
Group State Tax Liability for the year in question shall be recomputed by AXP in
good faith, including all changes to apportionment percentages that result from
such Adjustment. Ameriprise shall make payments to AXP for an increase in the
Ameriprise Group Tax Liability or AXP shall make payments to Ameriprise for a
decrease in the Ameriprise Group Tax Liability, including its allocable share of
interest, penalties and additions to Tax and external costs. Payment in respect
of such Adjustments by Ameriprise is due within five (5) business days after
billing by AXP for the items in question. Payment in respect of such Adjustments
by AXP is due within thirty (30) business days after AXP receives a refund or
credit for refund in respect of the items in question. Notwithstanding anything
herein to the contrary, in determining the Ameriprise Group State Tax Liability
for Minnesota, as agreed, the Ameriprise Group State Tax Liability for the
Combined Years beginning January 1, 1999 and ending December 31, 2001 has been
directly increased for the entire audit Adjustment to date for that period in
the total amount of $3,514,710 ($3,086,168 of tax and $248,542 of interest), and
such amount has been paid in full by Ameriprise.
(b) AXP shall in good faith control all contests relating to any such
Adjustments, provided, however, in respect of any Combined State in which the
Ameriprise Combined Group would bear at least 50% of the costs of any such
Adjustments, AXP shall consult with Ameriprise in good faith, subject to the
ultimate authority of AXP to determine how to proceed.
ARTICLE IV
SEPARATE TAX RETURN OBLIGATIONS
SECTION 4.01. Ameriprise Tax Liability. Ameriprise shall be responsible
for, and shall indemnify and hold harmless AXP and AXP Affiliates against, any
and all U.S. federal, state and local and non-U.S. Taxes that are required to be
reported on any separate Tax Return that does not include AXP or any AXP
Affiliate.
SECTION 4.02. AXP Tax Liability. AXP shall be responsible for, and shall
indemnify and hold harmless Ameriprise and Ameriprise Affiliates against, any
and all U.S. federal, state and local and non-U.S. Taxes that are required to be
reported on any separate Tax Return that does not include Ameriprise or any
Ameriprise Affiliate.
SECTION 4.03. Separate Return Adjustments. If there is an adjustment to a
separate Tax Return of AXP and/or AXP Affiliates, or Ameriprise and/or
Ameriprise Affiliates, as the case may be, that results in the inclusion in
income in such Tax Return of income attributable to the other group of
companies, and the recipient thereby incurs an Income Tax Detriment, Ameriprise
shall pay to AXP or AXP shall pay to Ameriprise, as the case may be, an amount
equal to such Income Tax Detriment (including any interest, penalties and
additions to Tax) within thirty (30) business days after the Final Determination
of such Income Tax Detriment.
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ARTICLE V
TAX-FREE STATUS OF DISTRIBUTION
SECTION 5.01. Tax-Free Status Ruling, Etc. Ameriprise acknowledges and
agrees that AXP will control the process of obtaining any rulings or other
formal advice from relevant Taxing authorities in respect of the Tax-Free
Status, the Distribution or any related transaction. Ameriprise shall promptly
execute and cause to be delivered to the Tax Advisor any representation letters
("Representation Letters") that the Tax Advisor provides to it and understands
that such letter or letters will be relied upon by the Tax Advisor in rendering
an opinion or opinions on the Tax-Free Status and related matters and/or
obtaining any such ruling or formal advice. Ameriprise shall represent that,
subject to any qualifications therein which are acceptable to the Tax Advisor,
all information contained in its Representation Letters that concerns or relates
to it or any Ameriprise Affiliate is true, correct and complete. Ameriprise
shall take such other actions as may be necessary or desirable to obtain any
such ruling, formal advice or opinion as the Tax Advisor may request.
SECTION 5.02. Maintaining Status of Active Business. Ameriprise agrees
that, from the date hereof until the first day after the second anniversary of
the Distribution Date, it shall maintain the status of the Fund Management
Business as an active trade or business as defined in Section 355(b)(2) of the
Code and the Treasury Regulations promulgated thereunder, that is part of, or
treated as part of, the Ameriprise legal entity for U.S. federal income Tax
purposes.
SECTION 5.03. Limits on Proposed Acquisition Transactions, Etc. Ameriprise
agrees that, from the date hereof until the first day after the second
anniversary of the Distribution Date, it shall not (i) enter into any Proposed
Acquisition Transaction, approve any Proposed Acquisition Transaction (whether
for purposes of Section 203 of the Delaware General Corporation Law, as amended,
any similar corporate statute, any "fair price" or other provision of
Ameriprise's charter or bylaws or otherwise) or, to the extent Ameriprise has
the right to prohibit any Proposed Acquisition Transaction, permit any Proposed
Acquisition Transaction to occur (whether by redeeming rights under a
shareholder rights plan, finding a tender offer to be a "permitted offer" under
any such plan or otherwise causing any such plan to be inapplicable or
neutralized with respect to any Proposed Acquisition Transaction), (ii) merge or
consolidate with any other Person or liquidate or partially liquidate,
(iii) sell or otherwise transfer in a single transaction or series of
transactions 50% or more of the gross or net assets of the Fund Management
Business or 50% or more of the consolidated gross or net assets of Ameriprise
and the Ameriprise Affiliates (such percentages to be measured based on fair
market value as of the Distribution Date), (iv) redeem or otherwise repurchase
(directly or through an Ameriprise Affiliate) any Ameriprise Capital Stock, or
rights to acquire such stock, (v) amend its certificate of incorporation (or
other organizational documents), or take any other action, whether through a
stockholder vote or otherwise, affecting the relative voting rights of the
separate classes of Ameriprise Capital Stock (including, without limitation,
through the conversion of one class of Ameriprise Capital Stock into another
class of Ameriprise Capital Stock) or (vi) take any other action or actions
(including any action or transaction that would be reasonably likely to be
inconsistent with any representation made in the Representation Letters, or any
rulings, formal advice or opinion described in Section 5.01 above) which in the
aggregate (taking into account any other transactions described in this
Section 5.03) would be reasonably likely to have the effect of causing or
permitting one or more Persons (whether or not acting in concert) to acquire,
directly or indirectly, Ameriprise Capital Stock representing a Fifty-Percent or
Greater Interest in Ameriprise or otherwise jeopardize the Tax-Free Status,
unless prior to taking any such action set forth in the foregoing clauses
(i) through (vi), (A) Ameriprise shall have requested that AXP obtain a private
letter ruling from the IRS and AXP shall have received such a ruling in form and
substance satisfactory to AXP that confirms that the Tax-Free Status will be
preserved, taking into account such action and other transactions in the
aggregate, or (B) Ameriprise shall provide AXP with an Unqualified Tax Opinion
in form and substance satisfactory to AXP that confirms that the Tax-Free Status
will be preserved, taking into
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account such action and other transactions in the aggregate, or (C) AXP shall
have waived the requirement to obtain such ruling or opinion. In determining
whether such a ruling or opinion is satisfactory, AXP may consider, among other
factors, the appropriateness of any underlying assumptions and representations
made in connection with such ruling or opinion. To the extent that any such
ruling or opinion concerns the acquisition of a Fifty-Percent or Greater
Interest in Ameriprise, it shall expressly conclude that such acquisition will
satisfy one or more of the safe harbors described in the Treasury Regulations
promulgated under Section 355(e) of the Code. Ameriprise shall bear all costs
and expenses of securing any such ruling or opinion and shall reimburse AXP for
all external costs and expenses that it may incur in good faith in seeking to
obtain or evaluate any such ruling or opinion.
SECTION 5.04. Twenty Five Percent Proposed Acquisition Transactions. If
Ameriprise proposes to enter into any Twenty Five Percent Proposed Acquisition
Transaction, approve a Twenty Five Percent Proposed Acquisition Transaction or,
to the extent Ameriprise has the right to prohibit any Twenty Five Percent
Proposed Acquisition Transaction, proposes to permit any Twenty Five Percent
Proposed Acquisition Transaction to occur, in each case, during the period from
the date hereof until the first day after the second anniversary of the
Distribution Date, Ameriprise shall provide AXP, no later than ten (10) business
days prior to the signing of any written agreement or taking any binding action
with respect to such transaction, with a detailed written description of such
transaction (including the type and amount of Ameriprise Capital Stock to be
issued or transferred in such transaction) and a certificate duly approved by
the Board of Directors of Ameriprise to the effect that the Twenty Five Percent
Proposed Acquisition Transaction is not a Proposed Acquisition Transaction or
any other transaction to which the requirements of Section 5.03 above would
apply (a "Board Certificate").
SECTION 5.05. Indemnity. (a) Subject to subsection (b) of this section,
Ameriprise shall be responsible for, and shall indemnify and hold AXP and AXP
Affiliates and their direct and indirect shareholders harmless against any
Tax-Related Losses that are attributable to or result from any one or more of
the following: (i) the direct or indirect acquisition of all or a portion of
Ameriprise's Capital Stock and/or its assets (or any transaction or series of
transactions that is deemed to be such an acquisition for purposes of
Section 355(e) of the Code and the Treasury Regulations promulgated thereunder)
by any means whatsoever by any Person, (ii) any negotiations, understandings,
agreements or arrangements by Ameriprise, any Ameriprise Affiliate or any of
their direct or indirect shareholders with respect to transactions or events
(including, without limitation, stock issuances pursuant to the exercise of
stock options or otherwise, option grants, capital contributions or
acquisitions, or a series of such transactions or events) that cause the
Distribution and related transactions to be treated as part of a plan pursuant
to which one or more Persons acquire directly or indirectly a Fifty-Percent or
Greater Interest in Ameriprise, (iii) any act or failure to act by Ameriprise or
any Ameriprise Affiliate described in Section 5.03 above (regardless of whether
such act or failure to act is covered by a ruling, Unqualified Tax Opinion or
waiver described in clause (A), (B) or (C), respectively, of Section 5.03 above,
or a Board Certificate described in Section 5.04 above) or (iv) any breach by
Ameriprise of its agreements or representations set forth in Sections 5.01 or
5.02 above.
(b) For purposes of calculating the amount and timing of any Tax-Related
Loss in connection with any Tax payable by an indemnified party, such loss shall
be calculated by assuming that the indemnified party pays income Tax at the
Highest Combined Tax Rate in effect in each relevant taxable year and that the
income arising in connection with the Tax-Related Losses is the only item of
income, deduction, Credit or loss for such year. AXP shall consult with
Ameriprise in good faith in respect of any audit, proceeding or contest in
respect of any Tax-Related Loss but shall ultimately control the disposition of
the same in good faith. Ameriprise shall pay AXP or such other applicable
indemnified party the amount of any such Tax-Related Losses for which Ameriprise
is responsible under this Section 5.05 within one (1) business day before
payment is due from AXP or such other party.
(c) Ameriprise shall not (i) merge or consolidate with any other Person or
liquidate or partially liquidate into any other Person, (ii) sell or otherwise
transfer to any other Person or group of Persons,
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directly or indirectly, in a single transaction or series of transactions 25% or
more of the gross or net assets of Ameriprise (such percentage to be determined
based on fair market value as of the Distribution Date), (iii) engage in any
other reorganization or restructuring with any other Person, or (iv) agree or
permit any Person or group of Persons, directly or indirectly, in a single
transaction or series of transactions, to acquire a Fifty-Percent or Greater
Interest in Ameriprise, unless, in each case, each such Person agrees, to AXP's
satisfaction, to be jointly and severally liable with Ameriprise in its
obligations under this Article V.
ARTICLE VI
DUAL CONSOLIDATED LOSSES
SECTION 6.01. Ameriprise Liability. Notwithstanding any other provision of
this Agreement or the provisions of any closing agreement relating to Dual
Consolidated Losses (defined below) of any member of the Ameriprise Group
("Closing Agreement"), Ameriprise shall be liable for, and indemnify AXP and AXP
Affiliates against (i) any Tax liability together with interest, penalties and
additions to Tax (including, without limitation, the interest charge described
in or that results from the application of Treasury Regulations
Section 1.1503-2 or Treasury Regulations Section 1.1503-2A, or interest
determined under any Closing Agreement that arises from any triggering event or
recapture under such regulations or Closing Agreement), applicable to an item of
deduction or loss of Ameriprise or an Ameriprise Affiliate (a "Dual Consolidated
Loss") or from the receipt of any payment under this Article VI and (ii) any
costs or expenses (including, without limitation, external attorneys' and
accountants' fees) incurred by AXP or an AXP Affiliate in connection with
determining, avoiding or contesting Recapture Taxes (defined below) or enforcing
the provisions of this Article VI. All indemnifiable amounts described in this
Section 6.01 shall be collectively referred to as "Recapture Taxes", to be
determined in accordance with Section 6.02 below.
SECTION 6.02. Recapture Taxes. Recapture Taxes shall be determined by AXP
in good faith, based, in relevant part, on the following assumptions: (i) the
amount of gross income realized from a triggering event or recapture of a Dual
Consolidated Loss cannot be offset by any losses, deductions or Credits (other
than those offsets actually permitted under Treasury Regulations
Section 1.1503-2(g)(vii)(B) or (C)(2), provided that such regulations are
applicable and all applicable requirements of the regulations are fully
satisfied); (ii) the amount of gross income, if any, realized upon the receipt
of any payment under this Article VI cannot be offset by any losses, deductions
or Credits; and (iii) the amounts described in clause (i) and (ii) of
Section 6.01 above are taxable at the Highest Combined Tax Rate.
SECTION 6.03. Closing Agreement. At Ameriprise's request, at Ameriprise's
sole cost and expense, AXP will cooperate in good faith in an effort to enter
into a closing agreement with the IRS of the type described in Treasury
Regulations Section 1.1503-2(g)(2)(iv)(B)(2), to the effect that Dual
Consolidated Losses will not be recaptured as a result of the Distribution.
ARTICLE VII
CARRYOVER AND CARRYBACK ITEMS
SECTION 7.01. Carryovers to Post-Affiliation Years. AXP will apportion, in
good faith, any U.S. federal consolidated net operating or capital losses,
Credits or other applicable items between members of the Ameriprise Group
(departing from the AXP Group as a consequence of the Distribution and related
transactions) and members of the AXP Group (not taking into account Ameriprise
Group members) pursuant to applicable Treasury Regulations promulgated under
Section 1502 of the Code. Such consolidated items and their apportionment will
be adjusted by AXP to reflect any Adjustments that take place in applicable
Affiliation Years.
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SECTION 7.02. Carrybacks from Post-Affiliation Years. (a) CARRYBACK ITEMS.
If Ameriprise and/or its subsidiaries sustain U.S. federal capital or net
operating losses or generate U.S. federal Credits in a Post-Affiliation Year
which may be carried back to an Affiliation Year and will generate an Income Tax
Benefit, Ameriprise may request AXP to file a Section 7.02 Claim with the IRS
with respect to the U.S. federal income Tax liability of the AXP Group for such
Affiliation Year. AXP shall have sole discretion whether to accept a request to
file carryback claims (except for foreign Tax Credit or domestic source capital
loss carryback claims) and file any amended Tax Returns or claims for refund
relating thereto, which discretion may be exercised without regard to satisfying
a standard of good faith or any other standard provided for in this Agreement or
elsewhere. With regard to requests to file foreign Tax Credit or domestic source
capital loss carryback claims to an Affiliation Year, AXP will implement such
requests it determines in good faith to be available on the terms set forth
hereinafter.
(b) PROCEDURES. If AXP files a Section 7.02 Claim, AXP shall have full
control over the Section 7.02 Claim and may determine in good faith the nature
of all actions to be taken in connection with such claim. If there is any
limitation that applies to the AXP Group in respect of all or a portion of the
items that comprise a Section 7.02 Claim in respect of foreign Tax Credits or
domestic source capital losses, any Income Tax Benefit in respect of such claim
shall be determined by AXP in good faith. If there any limitations in the
ability of the AXP Group to utilize items in the same category as the items that
comprise such claim, any Income Tax Benefit will be determined by AXP in good
faith based on the assumption that the items were utilized on a Proportionate
Basis. AXP will pay to Ameriprise for the amount of the Tax Benefit, if any, it
determines in good faith was derived from such claim within 30 business days
after it receives a refund or credit for refund therefor. Ameriprise will repay
to AXP all or a portion of such amount as determined by AXP in good faith to the
extent the Tax Benefit is reduced as a result of an Adjustment for any
Affiliation Year or otherwise, together with applicable interest and penalties.
If AXP elects to file a Section 7.02 Claim in respect of the carryback of any
attribute other than foreign Tax Credits or domestic source capital losses, the
terms for payment and other provisions shall be determined based upon the mutual
agreement, if any, of the Parties. If AXP files a Section 7.02 Claim, Ameriprise
will indemnify AXP for any additional Taxes or loss of Tax benefits incurred by
a member of the AXP Group (including interest, penalties and additions to Tax)
arising from such claim. AXP shall also be entitled to reimbursement from
Ameriprise for any reasonable external costs for professional services incurred
by AXP in connection with the Section 7.02 Claim whether or not Ameriprise
receives payment or credit therefor.
ARTICLE VIII
U.S. FEDERAL INCOME TAX ADJUSTMENTS
SECTION 8.01. Determination. If an Adjustment occurs, the liability of
Ameriprise or AXP, as the case may be, pursuant to Article II hereof, or the
amounts allocated pursuant to Article VII, shall be recomputed by AXP. As
recomputed for purposes of Article II, Ameriprise shall make payments to AXP for
an increase in Ameriprise's liability or AXP shall make payments to Ameriprise
for an increase in AXP's liability. For purposes of Sections 2.01 and 2.02,
Ameriprise's liability shall be deemed to have increased by any Adjustment that
results in an increase in the Adjusted Separate Ameriprise Group Federal Tax
Liability or a decrease in the Excess AXP Group Benefits, and AXP's liability
shall be deemed to have increased by any Adjustment that results in a decrease
in the Adjusted Separate Ameriprise Group Federal Tax Liability or an increase
in the Excess AXP Group Benefits.
SECTION 8.02. Payments. Payments due from Ameriprise to AXP shall be made
no later than one (1) business day before the due date for payment by AXP to a
Taxing authority upon the Final Determination of the items in question, or, to
the extent no such payment is due, within thirty (30) business days after the
date of such Final Determination. Payments due from AXP to Ameriprise shall be
made within thirty (30) business days after AXP receives a refund or a credit
for a refund with
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regard to the items in question after a Final Determination therefor. Such
payments shall include any applicable interest, penalties and additions to Tax
and, if applicable, any reasonable external costs for professional services
incurred by AXP thereon. In calculating any interest payable by Ameriprise to
AXP hereunder, interest, if any, due from AXP to the IRS shall first be deemed
to arise with respect to the increase in the liability of Ameriprise, as
determined above.
SECTION 8.03. Procedures. Subject to Section 7.02 hereof, for any
Affiliation Year or Combined Year, AXP will determine in good faith whether to
give effect, through any Tax Return, claim for refund or otherwise, to items of
loss, deduction or Credit for the Ameriprise Group which are greater than those
reflected on prior Tax Returns and the nature of all actions taken with respect
thereto. If AXP files such a claim, Ameriprise will indemnify AXP for any
additional Taxes or loss of Tax benefits incurred by a member of the AXP Group
or the applicable Total Combined Group (including interest, penalties and
additions to Tax) arising from such claim.
SECTION 8.04. Intercompany Adjustments. If any transaction or arrangement
between the AXP and/or AXP Affiliates, on the one hand, and Ameriprise and/or
Ameriprise Affiliates, on the other hand, is recharacterized for applicable Tax
purposes under Section 482 of the Code or otherwise and such recharacterization
results in an Income Tax Detriment to one applicable group of companies and an
Income Tax Benefit to the other group, the group incurring the Income Tax
Detriment shall be paid by the other group an amount equal to such Income Tax
Detriment (including any interest, penalties and additions to Tax) within thirty
(30) business days after the Final Settlement of such Income Tax Detriment. In
addition, each Party hereto shall be responsible for, and shall indemnify and
hold the other Party and its Affiliates harmless against, any Taxes attributable
to intercompany items or otherwise for any stock or other assets (tangible or
intangible) transferred to it (or an AXP Affiliate, in the case of AXP, or an
Ameriprise Affiliate, in the case of Ameriprise) from the other Party hereto (or
an AXP Affiliate, in the case of AXP, or an Ameriprise Affiliate, in the case of
Ameriprise) for which it is determined not to have paid or provided fair market
value consideration.
ARTICLE IX
U.S. FEDERAL INCOME TAX PROCEEDINGS
SECTION 9.01. Ameriprise and AXP Issues. AXP and Ameriprise hereby agree
that during the course of the audit of any Affiliation Year, they will in good
faith endeavor to discuss and resolve separately with the IRS district agents
any "Ameriprise Issues" and "AXP Issues" (defined below). "Ameriprise Issues"
are issues relating to items of income, gain, loss, deduction, or Credit that
are attributable solely to the Ameriprise Group and that could not reasonably
have material adverse consequences for the U.S. federal income Tax liability of
a member of the AXP Group (other than a member of the Ameriprise Group) if
resolved against the taxpayer, as determined in good faith by AXP. "AXP Issues"
are any other issues, including issues relating to Foreign Attributes of the
Ameriprise Group.
SECTION 9.02. Procedures. (a) In the event a Revenue Agent's Report
("RAR") is issued with respect to such taxable year, and the RAR contains
adjustments proposed with respect to Ameriprise Issues, at Ameriprise's request,
AXP shall protest (as provided for in applicable Treasury Regulations) the
adjustments made with respect to Ameriprise Issues. Ameriprise will prepare that
portion of any protest which it determines should be filed in connection with
any adjustment proposed with respect to Ameriprise Issues and shall limit such
portion of the protest to the defense of the specific Ameriprise Issues raised
in the RAR, unless AXP, in its sole discretion, determines otherwise.
(b) After the filing of such protest, AXP and Ameriprise shall jointly meet
with the representatives of the IRS responsible for disposing of the issues in
dispute and request the separate resolution of the AXP and Ameriprise Issues.
They shall further request that the IRS assign separate representatives to
conduct any review of or proceedings on their respective issues.
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(c) Regardless of whether the IRS agrees to resolve the issues affecting
each Party or assign separate representatives to deal with the issues of each,
AXP and Ameriprise each will attend meetings and will prepare written
presentations to be made to the IRS regarding any adjustments proposed only with
respect to its respective issues. AXP and Ameriprise shall keep each other
promptly informed of any developments and discussions at any such meetings
concerning adjustments, whether or not formally proposed, affecting the other
Party.
SECTION 9.03. Control of Issues. (a) For each Affiliation Year, AXP shall
have full control of all AXP Issues and all Ameriprise Issues not otherwise
settled by Ameriprise at the audit or appellate level of the IRS ("Ameriprise
Unsettled Issues") if the aggregate liability for any Taxes for which Ameriprise
would be liable hereunder ("Article IX Taxes") with respect to all Ameriprise
Unsettled Issues for such Affiliation Year does not exceed $1,000,000. If the
aggregate liability for Article IX Taxes with respect to Ameriprise Unsettled
Issues for any Affiliation Year exceeds $1,000,000, Ameriprise shall, at its
sole cost and expense, unless AXP agrees to waive the same, obtain an evaluation
of the Ameriprise Unsettled Issues ("Evaluation") from an independent attorney
experienced in the field of U.S. federal corporate income Taxation, who shall be
selected jointly by the Parties and who, in the case of a listed or reportable
transaction for U.S. federal income Tax purposes, is not a disqualified Tax
advisor within the meaning of Section 6664(d)(3)(B)(ii) of the Code. The
Evaluation shall state, for the Ameriprise Unsettled Issues on an issue-by-issue
basis, whether, in the opinion of the attorney (which in the case of a listed
transaction or reportable transaction for U.S. federal income Tax purposes does
not constitute a disqualified Tax opinion as defined in Section 6664(d) of the
Code) the filing position for each such issue satisfies the requirements set
forth in Section 6662(d) of the Code required for the reduction in any
understatement of income Tax penalty and in the case of any such listed
transactions or reportable transactions satisfies the additional requirements
set forth in Section 6664(d) of the Code required to avoid a reportable
transaction understatement penalty. Any discussions with respect to the
Evaluation shall be held with both Parties jointly, and such attorney shall send
a copy of the Evaluation (including any drafts thereof) to both Parties
simultaneously.
(b) If the Evaluation discloses any Ameriprise Unsettled Issues which do not
fully meet the aforementioned standards as applicable, Ameriprise shall be
obligated to settle such issues with the IRS at its own cost and expense within
a reasonable period of time after receipt of the Evaluation. If the aggregate
liability for Article IX Taxes with respect to the remaining Ameriprise
Unsettled Issues does not exceed $1,000,000, Ameriprise also shall be obligated
to settle all such issues at its own cost and expense within a reasonable period
of time after receipt of the Evaluation.
SECTION 9.04. Options for Resolution. If, for any Affiliation Year, the
aggregate liability for Article IX Taxes with respect to the remaining
Ameriprise Unsettled Issues exceeds $1,000,000, AXP may select one of two
options: (i) retain complete control over and liability for the remaining
Ameriprise Unsettled Issues, or (ii) cede complete control to Ameriprise for the
remaining Ameriprise Unsettled Issues. In the event that AXP selects option
(ii), Ameriprise shall assume complete responsibility and liability for such
issues, but shall proceed with reasonable diligence to resolve the same. In so
doing, Ameriprise may, upon ten (10) business days written notice to AXP, fund
the prepayment of any remaining Ameriprise Unsettled Issue if the effect of such
prepayment is to toll an interest charge for such issue and AXP does not
otherwise determine in good faith that such action would adversely affect the
U.S. federal income Tax liability of a member of the AXP Group (other than a
member of the Ameriprise Group). In addition, in such event, Ameriprise shall be
liable and indemnify AXP and the AXP Affiliates for, but AXP shall control the
resolution of, (A) each AXP Issue which is not expressly set forth in the RAR
with respect to such Affiliation Year ("New AXP Issues") and (B) each AXP Excess
Issue as defined below. For purposes of this Article IX, an "AXP Excess Issue"
shall mean an AXP Issue the Tax liability for which (including any related
interest, penalties and additions to Tax) exceeds any proposed deficiency set
forth in the RAR with respect to
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such AXP Issue or, if less, the amount of any deficiency with respect to such
AXP Issue in an agreement with the IRS reached during Appellate proceedings
("IRS Agreement"). Ameriprise's liability for an AXP Excess Issue shall be an
amount equal to the excess, if any, of the actual liability for Taxes (including
any related interest, penalties and additions to Tax) with respect to such AXP
Excess Issue over the proposed deficiency in the RAR or IRS Agreement, as the
case may be.
SECTION 9.05. Forum for Judicial Proceedings. In any case where judicial
proceedings are instituted, AXP shall be entitled to select the forum for such
judicial proceedings, unless AXP determines, in good faith, that such
proceedings involve only Ameriprise Unsettled Issues and has chosen option
(ii) described in Section 9.04 above in respect of such issues. In such event,
Ameriprise shall be entitled to select the forum for judicial proceedings. Each
Party shall bear the costs of litigation in respect of its own issues, PROVIDED,
HOWEVER, that Ameriprise shall bear the costs of litigation in respect of New
AXP Issues and AXP Excess Issues.
SECTION 9.06. Settlement of Claims. AXP may agree to settle any case
involving net U.S. federal income Tax claims for refund by the Ameriprise Group
and net U.S. federal income Tax liabilities by the AXP Group (not including the
Ameriprise Group) or otherwise on such terms as it determines are advisable;
provided, however, that if the Ameriprise Group has a fully agreed case
providing for a net U.S. federal income Tax refund of at least $1,000,000, AXP
may settle the entire case involving the entire AXP Group by agreeing to forego
such refund (or any portion thereof) only if it agrees to reimburse Ameriprise
for the amount of such foregone refund (or portion thereof).
ARTICLE X
PAYMENTS
Section 10.01. Reporting of Indemnity Payments, Etc. Any Tax indemnity
payments hereunder or payments made in respect of Tax-Related Losses hereunder
shall, unless otherwise required by law, be reported for Tax purposes by the
payer and the recipient as a cash capital contribution by AXP or a cash
distribution by Ameriprise, as the case may be, immediately before the
Distribution. If, notwithstanding such reporting, such payment results in
additional taxable income to the recipient, such payments shall be increased
such that the amount that the recipient receives (net of Taxes) shall equal the
amount of the payment that it would otherwise be entitled to receive pursuant to
this Agreement.
SECTION 10.02. Interest on Late Payments. If any payments hereunder are
not made when due, interest shall accrue on the unpaid amount at the
underpayment rate for large corporate underpayments, in effect from time to time
under Section 6621 of the Code, while such amount is outstanding.
ARTICLE XI
TAX RETURNS
SECTION 11.01. Cooperation and Furnishing of Tax Return
Information. (a) COOPERATION. AXP and Ameriprise each agree to cooperate fully
in connection with the preparation of any Tax Return relating to any Affiliation
Year or Combined Year and the resolution of any related Tax audits, proceedings
or disputes. In this regard, except as provided in the service level agreement
between AXP and Ameriprise relating to Tax services after the Distribution Date
or herein, the Tax department of Ameriprise and its subsidiaries shall, at the
expense of Ameriprise, and the Tax department of AXP and its subsidiaries shall,
at the expense of AXP, continue to perform the same Tax-related functions with
respect to such Tax Returns, audits, proceedings or disputes they have performed
to date.
(b) TAX RETURN INFORMATION. For purposes of the preparation by AXP of Tax
Returns for the taxable years ending on December 31, 2004 and December 31, 2005,
respectively, on or prior to such date(s) as specified by AXP, Ameriprise shall
provide AXP with Tax information for the respective life
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and non-life subgroups of the Ameriprise Group and Tax information for all
members of each Ameriprise Combined Group, including but not limited to,
schedule(s) showing the items of income, gain, loss, deduction and Credit and
Foreign Attributes with respect to each such taxable year required to be
included in applicable Tax Returns and complete work papers together with such
other information as AXP may request. The information provided by Ameriprise
shall be consistent with any similar information provided by Ameriprise to AXP
for prior taxable years.
(c) DISCLOSURES. Ameriprise represents that it has provided, and agrees
to promptly provide, to AXP complete and accurate information that is required
or AXP requests to satisfy all applicable U.S. federal, state and local, and
non-U.S., disclosure and reporting requirements in respect of listed
transactions, reportable transactions and other transactions that may be viewed
as Tax-motivated, including, but not limited to, U.S. state expense disallowance
information. Ameriprise also represents that is has provided, and agrees to
promptly provide, to AXP all documents and other information that is required or
AXP requests to satisfy the transfer pricing and other documentation
requirements set forth in Sections 482 and 6662 of the Code and the Treasury
Regulations thereunder or otherwise (including analogous provisions under U.S.
state and local or non-U.S. law), including but not limited to, principal
documents as defined in Treasury Regulations Section 1.6662-6(d)(2)(iii)(B), and
to address any transfer pricing audit issue arising under Section 482 of the
Code or otherwise, shall promptly provide to AXP any documents and information
it may request, including background documents as defined in Treasury
Regulations Section 1.6662-6(d)(2)(iii)(C). Ameriprise further represents that
it has provided, and agrees to promptly provide, to AXP all internal and
external tax opinions memoranda relating to the transactions and other matters
addressed in this subsection (c). If Ameriprise fails to timely satisfy the
requirements of this subsection (c), it will indemnify, and hold AXP and AXP
Affiliates harmless against, any Taxes, interest, penalties or additions to Tax
arising therefrom.
SECTION 11.02. Preparation of Tax Returns. (a) PREPARATION. AXP shall
have sole authority for the preparation and filing of any consolidated U.S.
federal income Tax Return or Combined Tax Return, which include the items of
income, gain, loss, deduction and Credit of the Ameriprise Group or any
Ameriprise Combined Group for all relevant taxable periods, including but not
limited to, determination of Foreign Attributes. With respect to the U.S.
federal income Tax Returns for the taxable years ending December 31, 2004 and
December 31, 2005, respectively, AXP agrees to notify Ameriprise and, subject to
filing deadlines, give Ameriprise an opportunity to comment on the reporting, if
it plans to file such Tax Returns reflecting data or information that is
materially different from the final data or information provided by Ameriprise.
In addition, with respect to any Combined Tax Return for the taxable years
ending December 31, 2004 and December 31, 2005, respectively, in which
Ameriprise is projected to have Tax liability in excess of $500,000, AXP agrees
to notify Ameriprise and, subject to filing deadlines, give Ameriprise an
opportunity to comment on the reporting, if it plans to file such Tax Returns
reflecting data or information that is materially different from the final data
or information provided by Ameriprise. Any decisions with respect to the timing,
filing, or content of the above Tax Returns shall be made by AXP in its sole
discretion and shall be final and binding upon the Parties hereto.
(b) ELECTIONS. Ameriprise and the appropriate members of the Ameriprise
Group or an Ameriprise Combined Group shall make or give their consent to such
elections or other matters relating to the Ameriprise Group or an Ameriprise
Combined Group as AXP determines are necessary or advisable in connection with
the filing of any such Tax Returns. In addition, no member of the Ameriprise
Group may elect to be considered as not having been a member of the AXP Group
for U.S. federal income Tax purposes and no member of an Ameriprise Combined
Group may elect to be considered as not having been a member of a Total Combined
Group for U.S. state or local Tax purposes for any taxable year or portion
thereof without the prior written consent of AXP.
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ARTICLE XII
POST-AFFILIATION YEARS AND POST-COMBINED YEARS
Section 12.01. Returns. Ameriprise shall not and shall not permit any of
the Ameriprise Affiliates to (i) file or amend any Tax Return for the
Post-Affiliation Year or a Post-Combined Year beginning on the first day
following the Distribution Date, in a manner that is inconsistent with the
manner in which AXP filed its Tax Returns in an Affiliation Year or a Combined
Year or (ii) make any election for any Post-Affiliation Year or Post-Combined
Year if such election would have the effect of binding or requiring conformity
by any member of the AXP Group or any Total Combined Group for any Affiliation
Year or Combined Year.
SECTION 12.02. Actions or Transactions. Ameriprise shall be obligated to
inform and disclose fully to AXP any actions taken or transactions undertaken in
a Post-Affiliation Year or a Post-Combined Year which can reasonably be expected
to affect in any material way the Tax liability of the AXP Group for any
Affiliation Year or a Total Combined Group for any Combined Year.
SECTION 12.03. Proposed Adjustments. Ameriprise shall promptly notify AXP
and keep AXP apprised of any proposed adjustments which arise out of an audit or
examination of a Post-Affiliation Year or Post-Combined Year Tax Return which
could reasonably be expected to affect in any material way the Tax liability of
for any Affiliation Year or Combined Years or which could reasonably result in
treatment of items that is inconsistent with the manner in which AXP filed its
Tax Returns for such years.
ARTICLE XIII
BOOKS AND RECORDS
Section 13.01. Retention Period. Without limiting any of the provisions of
this Agreement, each of the Parties agrees that it shall retain, until the
expiration of the appropriate statutes of limitations (including any extensions)
plus ninety (90) days, copies of any Tax Returns for any open periods during the
Affiliation Years and Combined Return Years which might be subject to adjustment
under this Agreement, supporting work schedules and other books, records or
information which may be relevant and that it will not destroy or otherwise
dispose of such records without first providing the other Party with a
reasonable opportunity to review and copy the same. Without limiting the
foregoing, Ameriprise shall cooperate with AXP in identifying such books,
records or information and so retain or provide to AXP such books, records or
information as may be specified by AXP in writing within 180 days after the
Distribution Date. Any information obtained pursuant to this Agreement, or any
other information obtained by AXP or Ameriprise relating to the Tax position of
either Party shall be kept confidential by the Parties hereto, except if
otherwise required by a Taxing authority.
SECTION 13.02. Record Retention Policy. Without limiting the foregoing,
each of the Parties hereto agrees that it shall retain copies of any books and
records in its possession as required by any record retention agreement in
effect from time to time, between AXP and the IRS or any other Taxing authority.
SECTION 13.03. Tax Attributes. Ameriprise shall maintain and provide to
AXP upon request information which will enable AXP to determine, clarify or
verify the adjusted book and Tax bases of the Ameriprise stock held by AXP,
Ameriprise's assets, both tangible and intangible, including the stock of all
directly and indirectly owned subsidiaries of Ameriprise which were members of
the Ameriprise Group or an Ameriprise Combined Group at any time during
Affiliation Years or Combined Years, and the adjusted book and Tax bases of all
assets, both tangible and intangible, of such subsidiaries. In addition,
Ameriprise shall maintain and provide to AXP upon request all relevant
information for the determination of earnings and profits of any members of the
Ameriprise Group, in accordance with applicable provisions of the Code and the
Treasury Regulations thereunder.
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ARTICLE XIV
COMPENSATION AND EMPLOYEE BENEFITS
Section 14.01. General. For U.S. federal, applicable U.S. state and local
income and other Tax purposes, all deductions in respect of compensation and
employee benefits, other than AXP Stock-Based Awards as provided below, whether
on or before or after the Distribution Date, shall be allocated to AXP (or its
appropriate subsidiary) or Ameriprise (or its appropriate subsidiary) based on
the entity which, directly or indirectly, provides the cash or other
consideration to its employees, former employees or other service providers or
any individual whose rights are derived from such individual's relationship with
such employee, former employee or service provider.
SECTION 14.02. AXP Stock-Based Awards. For U.S. federal, applicable U.S.
state and local income and other Tax purposes, all deductions in respect of AXP
Stock-Based Awards, whether on or before or after the Distribution Date, shall
be allocated as follows: (i) deductions in respect of AXP Options that are
exercised on or before the Distribution Date ("Exercised AXP Options") shall be
allocated to AXP (and shall accordingly not be taken into account in computing
Adjusted Separate Ameriprise Group Federal Tax Liability) except for the amount
of deductions (A) reflected in net U.S. federal income deferred Tax assets that
are properly recorded on the Ameriprise Group's books in respect of such
Exercised AXP Options immediately before their exercise pursuant to SFAS 123 or
SFAS 123(R) as adopted by AXP ("SFAS Exercised AXP Options") or (B) actually
realized upon the exercise of such SFAS 123 Exercised AXP Options, whichever is
less, and (ii) deductions in respect of AXP Options that are exercised after the
Distribution Date or in respect of AXP Stock-Based Awards (other than AXP
Options) shall be allocated between AXP (or its appropriate subsidiary that was
a direct employer of record of the holder of such award during the Vesting
Period) and Ameriprise (or its appropriate subsidiary that was a direct employer
of record of the holder of such award during the Vesting Period) pro rata based
on their respective Vesting Ratios.
SECTION 14.03. Reporting of Deductions. Unless otherwise required by law,
AXP and Ameriprise shall for themselves and their appropriate subsidiaries
compute their respective Tax liability and file all applicable Tax Returns in
accordance with the allocations under Sections 14.01 and 14.02 above. In the
event that any deduction allocated under such Sections to one entity is
subsequently required by law to be reported by another entity for Tax purposes,
AXP or Ameriprise shall pay the entity to which the deduction was allocated
under such Sections such amounts as are necessary to put such entity in the same
position, on an after-Tax basis, as it would have been if the allocation under
such Sections had been respected.
SECTION 14.04. Employment Taxes and Tax Reporting. To the extent that AXP,
Ameriprise or any of their subsidiaries is allocated a deduction for Tax
purposes under Sections 14.01 and 14.02 above or otherwise, the entity to which
the deduction is allocated shall be solely responsible for satisfying any
withholding and employment Tax liabilities and Tax reporting obligations in
respect of the compensation that corresponds to such deduction.
SECTION 14.05. Determinations. All determinations necessary to effect this
Article XIV, including those related to the Vesting Period and Vesting Ratios,
will be made by AXP in good faith.
ARTICLE XV
MISCELLANEOUS
SECTION 15.01. Notices. All notices, requests, claims, demands and other
communications hereunder must be in writing and will be deemed to have been duly
given only if delivered personally
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or by facsimile transmission or mailed (first class postage prepaid) to the
Parties at the following addresses or facsimile numbers:
If to AXP or any member of the AXP Group, to:
American Express Company
200 Vesey Street
New York, New York 10285
Attn: Gilbert E. Ahye
with a copy to:
American Express Company
200 Vesey Street
New York, New York 10285
Attn: Director of Tax
If to Ameriprise or any member of the Ameriprise Group, to:
Ameriprise Financial, Inc.
707 2nd Avenue, South
Minneapolis, Minnesota 55474
Attn: Walter Berman
with a copy to:
Ameriprise Financial, Inc.
707 2nd Avenue, South
Minneapolis, Minnesota 55474
Attn: Director of Tax
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this section, be deemed given upon receipt and (iii) if delivered by
mail in the manner described above to the address as provided in this section,
be deemed given upon receipt (in each case regardless of whether such notice,
request or other communication is received by any other Person to whom a copy of
such notice, request or other communication is to be delivered pursuant to this
section). Any Party from time to time may change its address, facsimile number
or other information for the purpose of notices to that Party by giving notice
specifying such change to the other Party.
SECTION 15.02. Complete Agreement; Representations. (a) This Agreement,
together with any exhibits and schedules hereto, constitutes the entire
agreement between the Parties with respect to the subject matter hereof and
shall supersede all previous negotiations, commitments and writings with respect
to such subject matter.
(b) AXP represents on behalf of itself and each other member of the AXP
Group and Ameriprise represents on behalf of itself and each other member of the
Ameriprise Group as follows:
(i) each such Person has the requisite corporate or other power and
authority and has taken all corporate or other action necessary in order to
execute, deliver and perform this Agreement to which it is a Party and to
consummate the transactions contemplated by this Agreement; and
(ii) this Agreement has been duly executed and delivered by such Person
(if such Person is a Party) and constitutes a valid and binding agreement of
it enforceable in accordance with the terms thereof (assuming the due
execution and delivery thereof by the other Party) except as such
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enforceability may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other laws affecting creditors'
rights generally and by general equitable principles.
SECTION 15.03. Amendment, Modification, or Waiver. (a) This Agreement may
be amended, supplemented, modified or superseded only by a written instrument
signed by duly authorized signatories of the Parties.
(b) Any term or condition of this Agreement may be waived at any time by the
Party that is entitled to the benefit thereof, but no such waiver shall be
effective unless set forth in a written instrument duly executed by or on behalf
of the Party waiving such term or condition. No waiver by any Party of any term
or condition of this Agreement, in any one or more instances, shall be deemed or
construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. All remedies, either under this Agreement or
by law or otherwise afforded, will be cumulative and not alternative.
SECTION 15.04. Severability. If any one or more of the provisions of this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement.
SECTION 15.05. No Assignment; Binding Effect; No Third-Party
Beneficiaries. (a) Neither this Agreement nor any right, interest or obligation
hereunder may be assigned by either Party hereto without the prior written
consent of the other Party hereto and any attempt to do so will be void. Subject
to the preceding sentence, this Agreement is binding upon, inures to the benefit
of and is enforceable by the Parties hereto and their respective successors and
assigns.
(b) Except for provisions relating to Affiliates and the provisions of
Article V relating to Tax-Related Losses, the terms and provisions of this
Agreement are intended solely for the benefit of each Party hereto and their
respective Affiliates, successors or permitted assigns, and it is not the
intention of the Parties to confer third-party beneficiary rights upon any other
Person.
(c) Notwithstanding anything herein to the contrary, unless the context
indicates otherwise, if an obligation is imposed on AXP or Ameriprise hereunder
it shall cause any Person that directly or indirectly controls or is controlled
by it to comply therewith to the extent reasonably necessary to carry out such
obligation. "Control" for these purposes shall have the same meaning as that set
forth under the definition of "Affiliate".
SECTION 15.06. Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
SECTION 15.07. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of the
counterparts together shall constitute one and the same instrument.
SECTION 15.08. Governing Law. This Agreement and any dispute arising out
of, in connection with or relating to this Agreement shall be governed by and
construed in accordance with the Laws of the State of New York, without giving
effect to the conflicts of laws principles thereof.
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IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement as
of the date first above written.
<Table>
AMERICAN EXPRESS COMPANY
By: /s/ Gilbert E. Ahye
------------------------------------------------
Name: Gilbert E. Ahye
Title: Senior Vice President
AMERIPRISE FINANCIAL, INC.
By: /s/ Walter S. Berman
------------------------------------------------
Name: Walter S. Berman
Title: Executive Vice President and Chief
Financial Officer
</Table>
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