TAX SHARING AGREEMENT
TAX
SHARING AGREEMENT
This agreement (hereafter
Agreement) is made and entered into by and between Ensurapet, Inc. a Nevada
corporation, (herein after Ensurapet), and Perfect Pet Club, Inc., a Michigan
corporation (herein after Club) and is intended by the parties to resolve the
status of the Club spinning out of Ensurapet, pursuant to the terms and
conditions set forth below.
1.
RECITALS
WHEREAS, on or about
January 29, 2009 Ensurapet discussed to have club spin out pursuant to (Form 10)
and become its own public company. This agreement between the parties
sets forth the terms and conditions of the spin out. The spin-off of Club will
occur by way of a pro rata distribution of the Club’s common and preferred stock
to Ensurapet’s stockholders. In the distribution, each Ensurapet stockholder
will receive one share of Purrfect Pet Club common stock for every share of
Ensurapet common stock and one share of Purrfect Pet preferred stock for every
share of Ensurapet preferred stock held at 5:00 p.m., Canton, Ohio time, on June
1, 2009, which is the record date of the spin-off. The dividend will be paid in
book-entry form and physical stock certificates will be issued only upon
request. Stockholder approval of the spin-off is not required, and you are not
required to take any action to receive your Club common and preferred
stock.
Following
the spin-off, Ensurapet’s business will consist entirely of the pet health
insurance business. Club will consist of the former online pet club business
segment of Ensurapet.
WHEREAS ENSURAPET,
warrants that Club has no outstanding liabilities or obligations of any
kind. Further that Club has no assets except the good will associated
with the Perfect Pet Club name. The parties agree that all,
liabilities for federal, state, local and foreign taxes for periods before and
through the spin-off, the preparation and filing of tax returns for such periods
and disputes with taxing authorities regarding taxes for such periods shall be
the responsibility of Ensurapet. The parties agree that all,
liabilities for federal, state, local and foreign taxes for periods after the
spin-off, the preparation and filing of tax returns for such periods and
disputes with taxing authorities regarding taxes for such periods shall be the
responsibility of the Club.
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The
parties further agree that Ensurapet will indemnify Club for all of the taxes
resulting from the transactions related to the distribution of our common and
preferred stock if Ensurapet takes certain actions that ultimately result in
disqualifying the distribution as tax-free under Sections 355 and 368 of the
Code. The tax sharing agreement will also require Ensurapet to
indemnify Club against any liability for tax if Ensurapet’ actions cause the
disqualification of the spin-off as tax free under the Code.
2.
RELEASE
OF CLAIMS
Effective upon, and
specifically conditioned on the timely performance by Club of all acts required
of Club under this agreement, Ensurapet hereby releases and forever discharges
and agrees to indemnify, Club and its principals, affiliates, partners, related
entity, agents, servants, employees, contractors, subcontractors, attorneys,
directors, shareholders, members, officers, subsidiaries, insurance carriers,
successors and assigns, and each of them, from any and all claims, demands,
liabilities, and causes of action, known or unknown, howsoever arising, from the
beginning of time to the date hereof, including but not limited to all claims or
defenses that could have been asserted, including all potential insurance claims
and claims of creditors except that the obligations contained in this agreement
shall remain in full force and effect, as well as all other Stipulation
terms.
4.
ASSIGN
ABILITY
Club has the right to
sell, assign, or transfer this agreement with all its rights, title, or interest
in it to any person, firm, or corporation at any time during the term of this
agreement, and any such assignee shall acquire all of the rights and assume all
of the obligations of Club under this agreement.
5.
TERMINATION
ON DEFAULT
If Ensurapet defaults in
the performance of this agreement or materially breaches any of its provisions,
Ensurapet must cure that default by a satisfactory performance within 3 calendar
days from the date of notice of the default or non
performance.
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6.
GENERAL
PROVISIONS APPLICABLE TO ALL THE AGREEING
PARTIES.
6.1 The
Agreeing Parties each agree that, in the event of any dispute concerning this
agreement, the prevailing party shall be entitled to recover his or her court
costs and attorney's fees.
6.2
This Agreement shall be binding upon and for the benefit of the Agreeing Parties
and their respective successors, devisees, legatees, executors, administrators,
affiliates, representatives, assigns, officers, directors, partners, agents,
servants, and employees.
6.3. This
Agreement constitutes the entire agreement among the Agreeing Parties with
regard to the matters set forth herein. No statements, promises or
representations have been made by any party to another party, or are relied upon
by any party, and no consideration has been or is offered, promised, expected or
held out other than as set forth in this Agreement. No conditions
precedent to the effectiveness of this Agreement exists other than as may be
expressly provided herein. All prior discussions and negotiations
have been and are merged and integrated into and are superseded by this
Agreement. It is expressly agreed that this Agreement may not be
altered, amended, modified or otherwise changed in any respect except by a
writing duly executed by an authorized representative of the Agreeing Parties
hereto, as approved by their respective counsel, if any. The Agreeing
Parties hereby agree and acknowledge that they will not claim at any time that
this Agreement has been orally altered or modified or otherwise changed by oral
communication of any kind.
6.4. This
Agreement may be executed in counterpart which, when taken together, shall
constitute one original Agreement.
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6.5. This
Agreement shall be deemed to have been executed and delivered within the State
of California, and the rights and obligations of the parties hereunder shall be
governed by, and construed and enforced in accordance with, the laws of the
State of California. Each party waives and will waive all right to trial by jury
in such action or proceeding.
6.6. No
representations, oral or otherwise, express or implied, other than those
contained herein have been made by any party hereto, and by execution hereof
this Agreement is made and entered into without reliance upon any statements or
representations of any party hereby obligated or released, or in reliance upon
any statements or representations made by any representatives, agents or
employees of any of the parties hereto.
6.7. Each
individual executing this Agreement represents and warrants that he is duly
authorized to execute this Agreement and that it is binding in accordance with
its terms and that said entity is bound by the same. All parties
warrant that they are the true holders of all rights and remedies which they
purport to release, and that they have not assigned or transferred any of these
rights or remedies to any other individuals and/or
entities.
6.8. Time
is of the essence in this Agreement.
6.9. Whenever
the context hereof so requires, the use of the masculine gender shall include
the feminine and/or the neuter, and the singular number shall include the
plural.
6.10.
In the execution of this Agreement and the negotiations leading thereto, the
parties hereto, that they have each carefully read this Agreement and know the
contents thereof; that the terms of this Agreement have been completely
explained and that they each executed Agreement as a voluntary
act.
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6.11. Each
party hereto, and counsel for each party, has reviewed and revised this
Agreement, and the normal rules of construction to the effect that any
ambiguities in this Agreement are to be resolved against the drafting party
shall not be employed in the interpretation of this
Agreement.
6.12. Paragraph
titles or captions, if any, contained in this Agreement are used for convenience
only and are not intended to, and shall not, in any way enlarge, define, limit,
extend or describe the rights or obligation of the parties or affect the meaning
or construction of this Agreement, or any provision
hereof.
Date
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ENSURAPET,
INC.
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XXXXXXX
XXXXX, DIRECTOR AND PRESIDENT
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Date
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PERFECT
PET CLUB
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XXXXXX
XXXXXXXX, DIRECTOR AND
PRESIDENT
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