EXHIBIT 10.2
TAX SHARING AND INDEMNIFICATION AGREEMENT
THIS TAX SHARING AND INDEMNIFICATION AGREEMENT ("Agreement") is
entered into as of June 30, 2001, by and between Equifax Inc., a Georgia
corporation ("Equifax"), and Certegy Inc., a Georgia corporation ("Certegy").
WHEREAS, Equifax is the common parent and Certegy is currently a
member of an "affiliated group," as that term is defined in section 1504 of the
Code (such term and certain capitalized terms being defined in Section 1.1),
that currently files consolidated federal income tax returns; and
WHEREAS, Certegy is a holding company and a wholly-owned subsidiary of
Equifax; and
WHEREAS, pursuant to that certain Distribution Agreement Plan of
Reorganization and Distribution dated as of even date with this Agreement (the
"Distribution Agreement") and subject to the terms and conditions thereof,
Equifax will transfer and assign or cause members of the Equifax Group to
transfer and assign to Certegy certain assets and businesses associated with the
Payment Services Business and the stock of certain corporations that conduct the
Payment Services Business; and
WHEREAS, prior to the Contribution, Equifax and certain Equifax
Affiliates will undertake the Foreign Restructuring to separate the Payment
Services Business from Equifax in foreign jurisdictions; and
WHEREAS, pursuant to the Distribution Agreement and subject to the
terms and conditions thereof, after the Contribution, Equifax will distribute to
its shareholders on a pro rata basis all of the issued and outstanding stock of
Certegy; and
WHEREAS, the parties intend that the Contribution and the Distribution
qualify as a tax-free reorganization and distribution under section 368(a)(1)(D)
and section 355 of the Code;
WHEREAS, in contemplation of the Distribution, the Equifax Group and
the Certegy Group desire to set forth their rights and obligations with respect
to foreign, federal, state and local taxes due for periods both before and after
the Distribution and with respect to certain tax and other liabilities that
might be arise in connection with the Distribution;
NOW THEREFORE, in consideration of the foregoing premises and the
mutual agreements and covenants contained in this Agreement and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 For purposes of this Agreement, the following definitions shall
apply:
(a) "2000 Certegy Tax Liabilities" has the meaning ascribed to such
term in Section 5.5.
(b) "2001 Certegy Estimated Tax Liabilities" has the meaning ascribed
to such term in Section 5.6.
(c) "Additional Restructuring Tax" means any Restructuring Tax other
than any Contemplated Restructuring Taxes.
(d) "Affiliated Group" means an affiliated group of corporations
within the meaning of section 1504(a) (determined without regard to the
exceptions contained in section 1504(b)) of the Code for the taxable period in
question.
(e) "Certegy Group" means (i) with respect to any period prior to the
Distribution Date, Certegy, Payment Services, any other entity directly or
indirectly conducting the Payment Services Business, and each of such entities'
wholly-owned subsidiaries; provided that the Certegy Group shall not include
Light Signatures, Inc., High Integrity Systems, LLC, or any other entity owned
by Equifax after giving effect to the Separation and the Distribution, and (ii)
with respect to any period on or after the Distribution Date, (A) the Affiliated
Group of which Certegy or any successor of Certegy is the common parent; and (B)
any entity in which any member of such Affiliated Group owns some or all of the
equity.
(f) "Certegy Issue" means any issue raised by any Tax Authority, which
issue results in (i) proposed Restructuring Taxes for which Certegy could be
liable pursuant to Section 2.3 hereof, or (ii) proposed Taxes for which Certegy
could be liable pursuant to Section 2.2 hereof.
(g) "Certegy Tainting Act" means (i) any breach by any member of the
Certegy Group of any written representation or covenant relating to the Certegy
Group made in any Ruling Document, or (ii) any action or actions of or involving
any member of the Certegy Group, or any omission or omissions of any such Person
(whether or not such action or omission is permitted pursuant to this
Agreement), of an action or actions available to it, after the Distribution
Date, if such breach, action or omission described in (i) or (ii) contributes to
a Final Determination imposing any Additional Restructuring Tax on any member of
the Equifax Group or the Certegy Group.
(h) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(i) "Consolidated Returns" means the consolidated United States
federal income tax returns of the Affiliated Group of which Equifax is the
common parent for consolidated return years beginning before the Distribution
Date and any consolidated, combined or similar state income tax returns of any
members of the Equifax Group for taxable years beginning before the Distribution
Date (including, in each case, any amendments thereto).
(j) "Contemplated Restructuring Tax" means any Restructuring Tax set
forth on Exhibit B to this Agreement.
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(k) "Contribution" has the meaning ascribed to such term in the
Distribution Agreement.
(l) "Distribution" has the meaning ascribed to such term in the
Distribution Agreement.
(m) "Distribution Agreement" has the meaning ascribed to such term in
the recitals to this Agreement.
(n) "Distribution Date" has the meaning ascribed to such term in the
Distribution Agreement.
(o) "Effective Time" has the meaning ascribed to such term in the
Distribution Agreement.
(p) "Equifax Affiliate" means any member of the Equifax Affiliated
Group.
(q) "Equifax Group" means, for each taxable period, (i) the Affiliated
Group of which Equifax or any successor of Equifax is the common parent; and
(ii) any entity in which any member of the Affiliated Group described in clause
(i) above owns some or all of the equity, provided, however, that the Equifax
Group shall not include any member of the Certegy Group.
(r) "Equifax Issue" means any issue raised by any Tax Authority, which
issue results in (i) proposed Restructuring Taxes (whether or not it is alleged
that a member of the Equifax Group is at fault or is partially at fault), or
(ii) proposed Taxes for which Equifax could be liable pursuant to Section 2.1
hereof.
(s) "Equifax Tainting Act" means (i) any breach by any member of the
Equifax Group of any written representation or covenant relating to the Equifax
Group made in any Ruling Document, or (ii) any action or actions of or involving
any member of the Equifax Group or any omission or omissions of any such Person
of an action or actions available to it (whether or not such action or omission
is permitted pursuant to this Agreement), after the Distribution Date, if such
breach, action or omission described in (i) or (ii) contributes to a Final
Determination imposing any Additional Restructuring Tax on any member of the
Equifax Group or the Certegy Group.
(t) "Expenses" means out-of-pocket expenses and shall not include any
overhead or indirect costs.
(u) "Final Determination" means the final resolution of liability for
any Tax for a taxable period (i) by IRS Form 870 or 870-AD (or any successor
forms thereto), on the date of acceptance by or on behalf of the IRS, or by a
comparable form under the laws of other jurisdictions, except that a Form 870 or
870-AD, successor form, or comparable form that reserves the right of the
taxpayer to file a claim for refund and/or the right of the Tax Authority to
assert a further deficiency shall not constitute a Final Determination; (ii) by
a decision, judgment, decree, or other order by a court of competent
jurisdiction which has become final and unappealable; (iii) by a closing
agreement or offer in compromise under section 7121 or 7122 of the Code or any
subsequently enacted corresponding provisions of the Code, or comparable
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agreements under the laws of other jurisdictions; (iv) by an allowance of a
refund or credit in respect of an overpayment of Tax, but only after the
expiration of all periods during which such refund may be recovered (including
by way of offset) by the Tax imposing jurisdiction; or (v) by any other final
disposition by reason of the expiration of the applicable statute of
limitations.
(v) "Foreign Restructuring" means the transactions undertaken prior to
the Contribution to separate the Payment Services Business from the other
Equifax businesses in foreign jurisdictions, as described on Exhibit A.
(w) "Group" means the Equifax Group or the Certegy Group, as the
context so requires.
(x) "Initial IRS Ruling" means the private letter ruling issued by the
IRS regarding certain Federal income Tax consequences of the Separation and the
Distribution.
(y) "IRS" means the United States Internal Revenue Service.
(z) "Payment Services" means Certegy Payment Services, Inc., a wholly
-owned subsidiary of Equifax organized under the laws of the State of Delaware.
(aa) "Payment Services Business" means the businesses conducted by
Equifax and its affiliates of providing payment transaction processing and check
risk management services to financial institutions and merchants.
(bb) "Post-Distribution Period" means (i) any Tax Period beginning
after the Effective Time and (ii) the portion of any Straddle Period beginning
after the Effective Time.
(cc) "Pre-Distribution Period" means (i) any Tax Period ending on or
before the Effective Time and (ii) the portion of any Straddle Period ending on
or before the Effective Time.
(dd) "Regulations" means Income Tax Regulations issued by the United
States Department of Treasury pursuant to the Code.
(ee) "Restructuring Tax" means any Tax imposed on any member of the
Equifax Group or the Certegy Group resulting from the Separation or the
Distribution that would not have been imposed had such transactions not
occurred.
(ff) "Ruling Documents" means (i) the request for the Initial IRS
Ruling, filed with the IRS in connection with the Separation and Distribution,
together with any supplemental filings or requests for Supplemental Ruling or
other materials subsequently submitted on behalf of Equifax, its subsidiaries
and shareholders to the IRS, the appendices and exhibits thereto, and any
rulings issued by the IRS to Equifax in connection with the Separation and
Distribution or (ii) any similar filings submitted to, or rulings issued by, any
other Tax Authority in connection with the Separation or Distribution.
(gg) "Separation" means the transactions necessary to transfer the
Payment Services Business to Certegy, including without limitation, the
transactions necessary to transfer
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the equity of High Integrity Systems, LLC to Equifax, the Foreign Restructuring,
and the Contribution.
(hh) "Special Refund Allocation Ratio" means with respect to either
Group, the aggregate outstanding amount of Special Refund Claims filed by a
member of such Group pending as of the Effective Date divided by the aggregate
outstanding amount of all Special Refund Claims.
(ii) "Special Refund Claims" means the claims for refund of state
income Taxes filed by members of the Equifax Group and the Certegy Group prior
to the Effective Date and still outstanding as of the Effective Date, as set
forth on Exhibit C to this Agreement.
(jj) "Straddle Period" means any Tax Period that begins before the
Effective Time and ends after the Effective Time.
(kk) "Supplemental Ruling" means any ruling issued after the issuance
of the Initial IRS Ruling (a) by the IRS in connection with the Distribution or
any transactions undertaken in connection with the Distribution or (b) by any
other Tax Authority, addressing the application of a provision of the laws of
another jurisdiction to any transaction undertaken in connection with the
Distribution.
(ll) "Supplemental Ruling Documents" has the meaning ascribed to such
term in Section 2.5(d)(i).
(mm) "Tax" or "Taxes" means all forms of taxation, whenever created or
imposed, whether domestic or foreign, imposed by any Tax Authority, and without
limiting the generality of the foregoing shall include net income, alternative
or add-on minimum tax, gross income, sales, use, franchise, gross receipts,
value added, ad valorem, profits, license, payroll, withholding, social
security, unemployment insurance, employment, property, transfer, recording,
excise, severance, stamp, occupation, premium, windfall profit, custom duty, or
other tax, governmental fee or other like assessment or charge of any kind
whatsoever, together with any related interest, penalties or other additions to
tax, or additional amounts imposed by any such Tax Authority. For purposes of
computing the Taxes of a party for any purpose of this Agreement, interest shall
be computed without regard to any Tax Items attributable to any other party (as
determined pursuant to Section 2.4) and without regard to any netting of
interest on any refund of Tax owed by the Tax Authority to the other party.
(nn) "Tax Authority" means any nation, locality, municipality,
government, authority, state, federation, or other governmental body or agency.
(oo) "Tax Benefit" means any Tax Item which decreases Taxes paid or
payable.
(pp) "Tax Controversy" means any audit, examination, dispute, suit,
action, litigation, or other judicial or administrative proceeding by or against
the IRS or any other Tax Authority. Notwithstanding the foregoing, any
proceeding pursuant to the Special Refund Claims shall not constitute a Tax
Controversy for purposes of this Agreement.
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(qq) "Tax Item" means any item of income, gain, loss, deduction,
credit, recapture of credit or any other item, including, but not limited to, an
adjustment under Code section 481 resulting from a change in accounting method,
which increases or decreases Taxes paid or payable.
(rr) "Tax Period" means with respect to any Tax, the period for which
the Tax is reported.
(ss) "Tax Returns" means all reports, estimates, declarations of
estimated tax, information statements, returns or other documents required or
permitted to be filed with a Tax Authority in connection with any Taxes,
including but not limited to requests for extensions of time, information
statements and reports, claims for refund, and amended returns.
ARTICLE II
ALLOCATION OF TAX LIABILITIES
2.1 Equifax Group.
(a) Current and Prior Periods. Except as otherwise provided in this
Agreement, Equifax shall be responsible and liable for all Taxes attributable to
the Equifax Group that are imposed for any Pre-Distribution Period. Equifax
hereby assumes all such liability and shall indemnify and hold harmless Certegy
and any member of the Certegy Group from and against any share or amount of all
Taxes attributable to the Equifax Group that are imposed for any Pre-
Distribution Period.
(b) Future Periods. Except as otherwise provided in this Agreement,
Equifax shall be responsible and liable for all Taxes attributable to the
Equifax Group that are imposed for any Post-Distribution Period and shall
indemnify and hold harmless Certegy and any member of the Certegy Group from and
against all such Taxes.
2.2 Certegy Group.
(a) Current and Prior Periods. Except as otherwise provided in this
Agreement, Certegy shall be responsible and liable for all Taxes attributable to
the Certegy Group that are imposed for all Pre-Distribution Periods. Certegy
hereby assumes all such liability and shall indemnify and hold harmless Equifax
and any member of the Equifax Group from and against any share or amount of
Taxes attributable to the Certegy Group that are imposed for any Pre-
Distribution Period.
(b) Future Periods. Except as otherwise provided in this Agreement,
Certegy shall be liable for all Taxes attributable to the Certegy Group that are
imposed for any Post-Distribution Period, and shall indemnify and hold harmless
Equifax and any member of the Equifax Group from and against all such Taxes.
2.3 Restructuring Taxes.
(a) Generally. Notwithstanding Section 2.1 or Section 2.2 to the
contrary, Equifax shall be responsible and liable for and shall indemnify and
hold harmless each member
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of the Certegy Group from and against any and all Contemplated Restructuring
Taxes. Notwithstanding anything in this Article II (other than Section 2.3(b) or
Section 2.3(c)) to the contrary, Equifax shall be responsible and liable for,
and shall indemnify and hold harmless Certegy and any member of the Certegy
Group from and against, any and all Additional Restructuring Taxes.
(b) Liability and Indemnification for Certegy Tainting Acts.
Notwithstanding anything in this Article II (other than Section 2.3(c)) to the
contrary, Certegy shall be responsible and liable for and shall indemnify and
hold harmless each member of the Equifax Group from and against, (i) any
Additional Restructuring Taxes, and (ii) any liability resulting from a decision
that Equifax is liable to Equifax's or Certegy's shareholders because of a Final
Determination that the Distribution is taxable, but in any case only to the
extent such Additional Restructuring Taxes or liability to shareholders is due
to a Certegy Tainting Act (and not an Equifax Tainting Act).
(c) Liability and Indemnification for Combined Tainting Acts.
Notwithstanding anything in this Article II to the contrary, in the event of a
Final Determination that Additional Restructuring Taxes are due to a Tax
Authority and such Additional Restructuring Taxes are caused by both an Equifax
Tainting Act and a Certegy Tainting Act, then the liability of Equifax and
Certegy for any Restructuring Taxes arising from such Final Determination and
any liability to shareholders arising from such Final Determination shall be
borne fifty percent (50%) by Equifax and fifty percent (50%) by Certegy. Each
party, jointly and severally with its Affiliated Group, agrees to pay and to
indemnify and hold the other party harmless from and against the amount of
Additional Restructuring Taxes and liability to shareholders allocated to such
first party under this subsection 2.3(c).
2.4 Allocation of Tax Liabilities. For purposes of determining whether any
Taxes or Tax Items are attributable to the Certegy Group or the Equifax Group
and whether any Tax Item is attributable to a Pre-Distribution Period or a
Post-Distribution Period, the following principles shall apply:
(a) For purposes of this Agreement, the determination of whether Taxes
or Tax Items are "attributable" to a member of the Certegy Group or the Equifax
Group shall be made using the methods that Equifax has used in Tax Periods prior
to the Distribution Date to allocate its Tax liabilities among the various
members of its affiliated group; provided that in any state that imposes income
Tax on a unitary basis, such determination for any Straddle Period shall be
based on apportionment factors applicable for the businesses and operations of
each Group as of the Effective Time notwithstanding any change in apportionment
factors resulting from a change in such businesses and operations occurring
after the Effective Time. The fact that a member of the Certegy Group or the
Equifax Group prepared or filed a return with respect to any Taxes is not
relevant in determining whether such Taxes are "attributable" to such member.
(b) The principles of Treasury Regulation Section 1.1502-76(b) as
reasonably interpreted and applied by Equifax shall apply in determining whether
a Tax Item is attributable to a Tax Period provided that (i) no election shall
be made under Treasury Regulation Section 1.1502-76(b)(2)(ii) (relating to
ratable allocation of a year's item); and (ii) if the Distribution
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Date does not coincide with the end of a calendar month, the provisions of
Treasury Regulation Section 1.1502-76(b)(2)(iii) will be applied to ratably
allocate the items (other than extraordinary items) for the month that includes
the Distribution Date (or the parties shall consistently use such accounting
conventions as the parties shall hereafter agree in writing).
(c) In determining the apportionment of Tax Items between Pre-
Distribution Periods and Post-Distribution Periods, any Tax Items relating to
the Separation and the Distribution shall be treated as an extraordinary item
described in Treasury Regulation Section 1.1502-76(b)(2)(ii)(C) and shall be
allocated to Pre-Distribution Periods, and any Taxes related to such items shall
be treated under Treasury Regulation Section 1.1502-76(b)(2)(iv) as relating to
such extraordinary item and shall be allocated to Pre-Distribution Periods.
2.5 Certain Representations and Covenants.
(a) The parties hereby make the following representations and
covenants.
(i) Certegy for itself and on behalf of each member of the
Certegy Group represents to Equifax that the information and
representations furnished in any Ruling Document (as modified,
qualified or elaborated in any subsequent Ruling Documents) are
accurate and complete as of the date hereof, to the extent that such
information and representations relate to the Certegy Group or the
business or activities of such entity.
(ii) Equifax for itself and on behalf of each member of the
Equifax Group represents to Certegy that, as of the date hereof, there
is no plan or intention to take any action inconsistent with the
information and representations furnished in any Ruling Documents (as
modified, qualified or elaborated in any subsequent Ruling Documents).
(iii) Each of Certegy and Equifax respectively represents to the
other party that, as of the date hereof, it is not aware of any plan
or intention by the current shareholders of Equifax to sell, exchange,
transfer by gift, or otherwise dispose of any of their stock in, or
securities of, Equifax or Certegy subsequent to the Distribution,
except as described in any Ruling Document (as modified, qualified or
elaborated in any subsequent Ruling Documents).
(iv) Each of Certegy and Equifax respectively covenants to the
other party (A) that it will use its best efforts to verify that the
foregoing representations made by it in this Section 2.5(a) are
accurate and complete as of the Distribution Date and (B) if, after
the date hereof, it obtains information indicating, or otherwise
becomes aware, that any such representations are or may be inaccurate
or incomplete, that it will promptly inform the other party, as the
case may be.
(v) Each of Certegy and Equifax respectively covenants to the
other party that it shall treat for income Tax purposes all
transactions that are the subject of the Initial IRS Ruling
consistently therewith.
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(b) Each of Certegy and Equifax covenants to the other party that,
except as permitted in Section 2.5(c):
(i) During the two-year period following the Distribution Date,
it will not merge or consolidate with any other person, or enter into
any transaction that constitutes a liquidation of such entity for
federal income tax purposes.
(ii) During the two-year period following the Distribution Date,
it will not sell, exchange, distribute or otherwise dispose of assets
used in the active conduct of the historic businesses relied upon to
satisfy Code section 355(b), if such sale, exchange, distribution, or
other disposition would cause Code section 355(b) not to be satisfied
if such test were applied immediately after such transaction.
(iii) Following the Distribution, it will, for a minimum of two
years, continue the active conduct of the historic businesses relied
upon to satisfy Code section 355(b).
(iv) It will not redeem, reacquire or otherwise repurchase stock
in a manner contrary to the requirements of Section 4.05 of Revenue
Procedure 96-30.
(v) During the two-year period following the Distribution Date,
it will not engage in any transaction resulting in the direct or
indirect acquisition of such party's stock representing a 50% or
greater interest in such party within the meaning of Code section
355(d)(4).
Equifax further covenants that it will prevent any member of the Equifax Group
which is a party to the Canadian Restructuring or the U.K. Restructuring (each
as defined in Exhibit A) from undertaking any transaction described in Section
2.5(b)(i) through Section 2.5(b)(v) above except as permitted in Section 2.5(c)
below. Certegy further covenants that it will prevent any member of the Certegy
Group which is a party to the Canadian Restructuring or the U.K. Restructuring
from undertaking any transaction described in Section 2.5(b)(i) through Section
2.5(b)(v) above except as permitted in Section 2.5(c) below.
(c) A party may take actions inconsistent with the covenants contained
in Section 2.5(b), if prior to taking such action:
(i) Such party obtains an opinion of counsel, which counsel and
which opinion are acceptable to the other party in its reasonable
discretion, to the effect that such actions should not affect the
Federal income Tax treatment of the Separation and the Distribution to
the parties and the shareholders of Equifax as set forth in any prior
private letter ruling issued by the IRS, it being understood that each
party agrees to cooperate with the other party and use its reasonable
best efforts to assist the other party in attempting to obtain, as
expeditiously as possible, any opinion requested by the other party
described in this Section 2.5(c)(i);
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(ii) Equifax obtains a Supplemental Ruling to the effect that
such actions will not affect the Federal income Tax treatment of the
Separation and the Distribution to the parties and the shareholders of
Equifax as set forth in any prior private letter ruling issued by the
IRS; or
(iii) Such party obtains the written consent of the other party.
(d) Supplemental Rulings.
(i) Equifax agrees that at the reasonable request of Certegy,
Equifax shall cooperate with Certegy and use its reasonable best
efforts to seek to obtain, as expeditiously as possible, a
Supplemental Ruling or other guidance from a Tax Authority for the
purpose of confirming (A) the continuing validity of any ruling
(including another Supplemental Ruling) previously issued by the IRS
or any other Tax Authority, or (B) compliance on the part of a member
of the Certegy Group with its obligations under this Section 2.5.
Equifax shall be obligated to seek a Supplemental Ruling requested by
Certegy unless it reasonably believes that the relevant Tax Authority
would not issue such a ruling. Notwithstanding the foregoing sentence,
in no event shall Equifax be obligated to file a request for a
Supplemental Ruling unless Certegy represents that (a) it has read the
request for the Supplemental Ruling and any materials, appendices and
exhibits to be submitted or filed therewith ('Supplemental Ruling
Documents") and (B) all information (other than information provided
by an external expert) and representations, if any, relating to any
member of the Certegy Group contained in the Supplemental Ruling
Documents are true, correct and complete in all material respects.
Certegy shall reimburse Equifax for all reasonable costs and expenses
incurred by Equifax in seeking or obtaining a Supplemental Ruling
requested by Certegy. Certegy hereby agrees that Equifax shall have
sole and exclusive control over the process of obtaining a
Supplemental Ruling, and that only Equifax shall apply for a
Supplemental Ruling. Certegy further agrees that it shall not seek any
guidance from the IRS or any other Tax Authority concerning the
Separation and the Distribution except as set forth in this Section
2.5(d).
(ii) If Equifax determines that it will seek a Supplemental
Ruling or other guidance from a Tax Authority after the date of this
Agreement: (A) Equifax shall keep Certegy informed in a timely manner
of all material actions taken or proposed to be taken in connection
therewith; (B) Equifax shall (1) reasonably in advance of the
submission of any such Supplemental Ruling Documents, provide Certegy
with a draft copy thereof, (2) reasonably consider Certegy's comments
on such draft copy, and (3) provide Certegy with a final copy of the
Supplemental Ruling Documents; and (C) Equifax shall provide Certegy
with notice reasonably in advance of, and Certegy shall have the right
to attend, any formally scheduled meetings with the Tax Authority
(subject to the approval of the Tax Authority) that relate to such
Supplemental Ruling.
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ARTICLE III
REFUNDS OF TAXES
3.1 General. Except as provided in Section 3.2, each party shall be
entitled to retain or be paid all refunds of Tax received, whether in the form
of payment, credit or otherwise, from any Tax Authority with respect to any Tax
Returns filed or to be filed by such party or a member of such party's Group in
accordance with Article V of this Agreement, provided, however, that Certegy
shall be entitled to retain or be paid all such refunds with respect to any
Taxes to the extent such Taxes exclusively pertain to property or operations of
the Certegy Group. Notwithstanding anything contained in this Section 3.1 to the
contrary, Equifax shall be entitled to be paid and to retain, and Certegy shall
not be entitled to retain and shall be required to pay over to Equifax, any
refunds of Tax received to the extent (i) Equifax indemnified Certegy for the
Taxes attributable to such refunds, or (ii) Equifax paid to the Tax Authority
the Taxes attributable to such refunds and Equifax has not been indemnified by
Certegy.
3.2 Special Refund Claims.
(a) The parties acknowledge that various members of the Equifax Group
and the Certegy Group have filed the Special Refund Claims prior to the
Effective Date. Notwithstanding any other provision of this Agreement, the
parties shall be paid or shall retain any refunds received as a result of the
Special Refund Claims as follows:
(i) Until the aggregate amount of Tax refunds received in respect
of Special Refund Claims is equal to the product of (A) the balance of
general ledger account "Company 00 000-00-00" as of the Effective Time
multiplied by (B) 1.8923, Equifax shall be entitled to be paid or to
retain all proceeds from Tax refunds received by any party in respect
of the Special Refund Claims. Equifax shall be responsible and liable
for paying all professional fees and other costs directly related to
the pursuit and collection and all Taxes attributable to the receipt
of such Tax refunds and shall indemnify and hold harmless Certegy and
any member of the Certegy Group against any such fees or Taxes.
(ii) The proceeds of any Tax refunds received by any party in
respect of the Special Refund Claims in excess of the amount set forth
in Section 3.2(a)(i) shall be shared by the parties in proportion to
their respective Special Refund Allocation Ratios. The parties shall
be responsible and liable for the cost of all professional fees and
other costs and expenses directly related to the pursuit and
collection of Special Refund Claims and the collection of Tax refunds
(including, without limitation, all Taxes attributable thereto)
described in the preceding sentence in proportion to their respective
Special Refund Allocation Ratios. Each party shall indemnify the other
party for any amounts described in the preceding sentence to the
extent that such party (or any member of such party's Group) incurs
any such amounts in excess of such party's Special Refund Allocation
Ratio.
(b) Each party shall notify the other party promptly of any
communication with any Tax Authority relating in whole or in part to any Special
Refund Claim. Equifax and
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Certegy shall cooperate with each other to allow each party to pursue the
Special Refund Claims, and each party agrees to take all actions reasonably
necessary or advisable to pursue the collection of all Tax refunds pursuant to
the Special Refund Claims; provided that neither party shall have any obligation
to take any action that would cause such party to incur additional Taxes (other
than Taxes attributable to the receipt of the proceeds of the refund).
(c) In the event that either Equifax or Certegy elects to withdraw
from the pursuit of any Special Refund Claim by giving notice of such withdrawal
to the other party, the Withdrawing Party (or any member of the Withdrawing
Party's Group) shall thereafter have no right to retain or to be paid any Tax
refund pursuant to such Special Refund Claim and shall have no obligation to pay
any professional fees or other costs or expenses incurred after the date of such
notice related to the pursuit of such Special Refund Claim. The Withdrawing
Party shall continue to have the obligations described in Section 3.2(b). The
remaining party may continue to pursue such Special Refund Claim, and shall be
entitled to retain or to be paid all proceeds from any Tax refund received
pursuant to such Special Refund Claim.
ARTICLE IV
CARRYBACKS FROM SEPARATE RETURN YEARS
4.1 General. Notwithstanding anything herein to the contrary, with the
prior written consent of Equifax, which consent may not be unreasonably
withheld, the Certegy Group may elect to carry back to any Taxable Period
beginning before the Distribution Date any Tax Item arising in any Taxable
Period beginning after the Distribution Date that the Certegy Group may properly
elect to carry back for Federal income Tax purposes or combined state Tax
purposes to a Consolidated Return. With respect to any such carryback, Equifax
agrees to file such claims for refund and other returns as may be required to
claim the Tax refunds attributable to such carryback items and to pay promptly
after receipt to Certegy the cash amount of any refunds of Taxes, including the
cash amount of any interest resulting from the utilization of such Tax Items,
after taking into consideration any resulting increase or decrease in the Tax
liability of any member of the Equifax Group. To the extent authorized by law,
Equifax shall act as collection agent for the Certegy Group with respect to any
such refund.
4.2 Review and Expenses. The amount of any carryback by the Certegy Group
shall be reviewed and approved (on the basis of Tax information contained in
Certegy's Tax Return) by Equifax's certified public accountants as to the amount
and validity of such carryback. Certegy agrees to reimburse Equifax for its
reasonable Expenses incurred in reviewing, filing and securing any Certegy
refund claims hereunder.
4.3 Subsequent Disallowance. In the event that any Tax attribute for which
Equifax has made a payment pursuant to Section 4.1 is subsequently reduced or
disallowed, Certegy shall indemnify Equifax and hold it harmless from any Tax
liability, including interest and penalties, incurred by reason of such
reduction or disallowance.
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ARTICLE V
TAX RETURN PREPARATION
5.1 Consolidated Returns.
(a) Equifax shall prepare and timely file all Consolidated Returns.
Certegy shall have a reasonable period under the circumstances to review the
2000 and 2001 Consolidated Returns. The Consolidated Returns shall be prepared
and filed by Equifax in compliance with applicable Tax laws and on a basis that
is consistent with any Ruling Documents or legal opinion obtained by Equifax in
connection with the Distribution or Separation and, subject to the foregoing,
consistent with Equifax's prior Consolidated Returns.
(b) Certegy shall be responsible for preparing all information
relating to the Certegy Group necessary for Equifax to prepare and file the
Consolidated Returns. Such information shall include the annual federal and
state, if any, Tax work preparation package, necessary to enable Equifax to
prepare the Consolidated Returns, completed and delivered to Equifax on or
before the same deadline imposed upon other Equifax business units. Such
information shall be used as the basis for Equifax's preparation of the
Consolidated Returns.
(c) Equifax shall not make any election or consent in connection with
such Consolidated Returns without the consent of Certegy, which consent shall
not be unreasonably withheld, unless (i) such election or consent is not binding
on any member of the Certegy Group for any Tax Period; or (ii) Certegy may
revoke such elections without the consent of any Tax Authority. Certegy and the
Certegy Group agree not to elect to be excluded from any such Consolidated
Return.
(d) Certegy and the Certegy Group agree to cooperate with Equifax, at
Equifax's expense, in the preparation of any valuation studies or other reports
which are appropriate or necessary for the preparation of the Consolidated
Returns.
5.2 Other Pre-Distribution Returns.
(a) Equifax shall prepare and timely file all other Tax Returns of any
member of the Equifax Group or the Certegy Group for all Tax Periods that are
exclusively Pre-Distribution Periods and all Straddle Periods. Notwithstanding
the foregoing sentence, Certegy shall prepare and timely file Tax Returns for
any Pre-Distribution Period and any Straddle Period if such Tax Returns pertain
exclusively to property or operations of the Certegy Group; provided that
Equifax, at the reasonable request of Certegy, shall file sales and use tax
returns pertaining to the operations of the Certegy Group that are required to
be filed on or before September 30, 2001. Notwithstanding anything contained in
the previous sentence, Equifax shall continue to file all Tax Returns of the
members of the Certegy Group for any Pre-Distribution Period if the Tax Returns
for such period are required to be filed on or prior to the Distribution Date.
Certegy shall have a reasonable period under the circumstances to review each
such Tax Return.
(b) Certegy shall reimburse Equifax the aggregate amount of $63,000.00
for professional fees paid to Xxxxxxx & Xxxxxxxxx, P.C. attributable to the
preparation of 2000 and 2001 Tax returns for the Certegy Group, which amount
(without interest) shall be payable in six equal monthly installments beginning
on July 31, 2001.
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5.3 Post-Distribution Returns. Certegy shall prepare and timely file all
Tax Returns of any member of the Certegy Group for Tax Periods that are
exclusively Post-Distribution Periods, and Equifax shall prepare and timely file
all Tax Returns of any member of the Equifax Group for Tax Periods that are
exclusively Post-Distribution Periods.
5.4 Cooperation; Exchange of Information. Each party shall be responsible
for the timely submission to the other party of information of which it has
knowledge regarding any Tax Item which may properly be included in any Tax
Return to be filed by the other party or any member of the other party's
Affiliated Group, and shall provide any and all other information and
documentation (including, but not by way of limitation, working papers and
schedules) reasonably requested by the other party for use in connection with
the preparation and filing of any Tax Returns.
5.5 Payment of 2000 Certegy Tax Liabilities; Certegy Tax Benefits.
(a) Certegy shall pay to Equifax an amount equal to the aggregate
amount of Taxes that would be owed by the Certegy Group for the Tax Period
consisting of the 2000 calendar year to the extent that such Taxes must be paid
by Equifax as part of a Consolidated Return (the "2000 Certegy Tax
Liabilities"). Such amount shall be computed in a manner consistent with Section
2.4, and shall be reduced by any Tax Benefit of Equifax attributable to a
Certegy Tax Item. Notwithstanding the above, such amount shall not include
amounts related to separate returns filed on a combined or unitary basis, except
to the extent consistent with the manner in which the Tax liabilities on such
returns were allocated in prior years. Payment of the 2000 Certegy Tax
Liabilities shall be due on or before the tenth (10/th/) day after receipt by
Certegy of a notice including the applicable computations prepared by Equifax in
connection with the filing of Equifax's Consolidated Return for the 2000
calendar year.
(b) Equifax shall pay to Certegy any Tax Benefit of Equifax
attributable to a Certegy Tax Item, to the extent that such Tax Benefit exceeds
the amount of the 2000 Certegy Tax Liabilities. Payment of such amount shall be
due on or before the tenth (10/th/) day after receipt by Certegy of a notice
including the applicable computations prepared by Equifax in connection with the
filing of Equifax's Consolidated Return for the 2000 calendar year.
5.6 Payment of 2001 Certegy Estimated Tax Liabilities; Adjustment.
(a) Certegy shall pay to Equifax an amount equal to the estimated
aggregate amount of Taxes that would be owed by the Certegy Group for the Tax
Period consisting of the 2001 calendar year to the extent that such Taxes must
be paid by Equifax as part of a Consolidated Return (the "2001 Certegy Estimated
Tax Liabilities"). Such estimated amount shall be computed in a manner
consistent with Section 2.4, and shall be reduced by any Tax Benefit of Equifax
attributable to a Certegy Tax Item. Notwithstanding the above, such estimated
amount shall not include amounts related to separate returns filed on a combined
or unitary basis, except to the extent consistent with the manner in which the
Tax liabilities on such returns were allocated in prior years. Payment of the
2001 Certegy Estimated Tax Liabilities shall be due on or before the tenth
(10/th/) day after receipt by Certegy of a notice including the applicable
computations prepared by Equifax.
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(b) Upon the filing of the Consolidated Return for the Equifax Group's
Tax Period ending December 31, 2001, the 2001 Certegy Estimated Tax Liabilities
previously computed shall be restated and adjusted by Equifax based upon
information then available. An adjusting payment shall be made by Equifax or
Certegy as shall be required by any restatement or adjustment of the 2001
Certegy Estimated Tax Liabilities. Such payment shall be due on or before the
tenth (10th) day after receipt by Certegy of a notice including the applicable
computations prepared by Equifax.
(c) Equifax shall pay to Certegy any Tax Benefit of Equifax
attributable to a Certegy Tax Item, to the extent that such Tax Benefit exceeds
the amount of the 2001 Certegy Tax Liabilities. Payment of such amount shall be
due on or before the tenth (10th) day after receipt by Certegy of a notice
including the applicable computations prepared by Equifax in connection with the
filing of Equifax's Consolidated Return for the 2001 calendar year.
ARTICLE VI
TAX CONTROVERSIES AND RECORDS
6.1 Tax Controversies.
(a) Each of Certegy and Equifax shall have full responsibility and
discretion in handling, settling, or contesting any Tax Controversy involving a
Tax for which such party is liable pursuant to Article II of this Agreement. If
a Tax Controversy proceeding involves both (i) one or more issues that would
result in Taxes for which Equifax is liable under this Agreement and (ii) one or
more issues that would result in Taxes for which Certegy is liable under this
Agreement, then Equifax and Certegy shall cooperate with each other to allow
each party to conduct the Tax Controversy with respect to those issues that
would result in Taxes for which such party is liable. Furthermore, Equifax may
participate in any Tax Controversy with respect to Restructuring Taxes
regardless of whether it has liability or indemnification obligations with
respect to such Taxes under this Agreement.
(b) The party responsible for any Tax Controversy shall use all
reasonable efforts (taking into consideration all relevant facts and
circumstances known to the party) to resist any deficiency assertions by any Tax
Authority regardless of which party is ultimately responsible for any such Tax
under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with
the IRS or other Tax Authority relating in whole or in part to any Certegy
Issue.
(i) Certegy shall have 30 days after receipt of such notice from
Equifax within which to object to the proposed adjustment relating to
a Certegy Issue (that is not an Equifax Issue). If Certegy does not
notify Equifax within such 30 day period that it objects to the
proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v)
below shall not apply, and Equifax shall have exclusive control over
all stages of the Tax Controversy, including full authority to
determine whether and in what manner to contest or compromise the
issue, unless and until Certegy so notifies Equifax.
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(ii) If Certegy notifies Equifax that it objects to the proposed
adjustment relating to a Certegy Issue (that is not an Equifax Issue),
then Equifax shall not thereafter consent to the adjustment or
compromise of such Certegy Issue without the consent of Certegy, but
shall cooperate with Certegy to resolve the Certegy Issue on a basis
acceptable to Certegy. Prior to the issuance of a notice of proposed
adjustment or similar stage in the proceedings, however, Equifax shall
be responsible for the conduct of the audit, including matters
pertaining to such Certegy Issue. Equifax shall notify Certegy in
advance of any conferences, meetings, and proceedings pertaining to
the audit and, at its own expense, Certegy shall have the right to
attend all such proceedings with any Tax Authority, the subject matter
of which is or includes such Certegy Issue.
(iii) Upon the issuance of a notice of proposed adjustment or
similar stage in the proceedings, Certegy shall assume the conduct of
all further proceedings, with counsel selected by it, at Certegy's
sole expense, insofar as the proceedings relate to a Certegy Issue
(that is not an Equifax Issue), and thereafter Certegy and Equifax
shall jointly be responsible for the conduct of proceedings to contest
such Certegy Issue.
(iv) In the event that Equifax receives a notice of deficiency
from the IRS, or a similar notice from any other Tax Authority, and
such notice relates exclusively to one or more Certegy Issues (none of
which are Equifax Issues) and does not relate to an Equifax Issue
then:
(A) upon receiving a written request from Certegy, given no
later than a date reasonably necessary to permit preparation and
timely filing of a petition in the United States Tax Court for
redetermination of the deficiency, or a court of similar jurisdiction
with respect to Taxes imposed by any other Tax Authority, Equifax
shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a
petition for redetermination of the deficiency pursuant to subsection
6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim
for refund, and (3) Certegy provides Equifax with sufficient funds to
pay the deficiency relating to the Certegy Issue, then Equifax (at
Certegy's sole expense) shall file a claim for refund thereof and, if
the claim is denied, bring an action in a court of competent
jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax
Court or other court of competent jurisdiction results in an adverse
determination with respect to the Certegy Issue, then Certegy shall
have the right to cause Equifax to appeal from such adverse
determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole
expense, shall be entitled to the extent permitted by law to
participate in (1) all conferences, meetings, or proceedings with any
Tax Authority, the subject matter of which is a Certegy Issue (that is
not an Equifax Issue), and (2) all appearances
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before any court, the subject matter of which is a Certegy Issue (that
is not an Equifax Issue). The right to participate referred to in this
subsection 6.1(c)(iv)(D) hereof shall include the submission and
content of documentation, memoranda of fact and law and briefs, the
conduct of oral arguments or presentations, the selection of
witnesses, and the negotiation of stipulations of fact with respect to
a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is
also an Equifax Issue (or if the proposed adjustment relates solely to
an Equifax Issue that is not a Certegy Issue), then Equifax shall be
fully responsible for the conduct of the Tax Controversy, including
matters pertaining to any Certegy Issue, but Equifax shall use
reasonable efforts to involve Certegy in the conduct of the Tax
Controversy insofar as it relates to any Certegy Issue. Equifax shall
notify Certegy in advance of any such proceedings and, at its own
expense, Certegy may attend all conferences, meetings, or proceedings
with any Tax Authority, the subject matter of which is or includes any
Certegy Issue. Certegy shall use all reasonable efforts to assist
Equifax in resisting any deficiency assertions by any Tax Authority
relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with
the IRS or other Tax Authority relating in whole or in part to any Equifax
Issue.
(i) Equifax shall have 30 days after receipt of such notice from
Certegy within which to object to the proposed adjustment relating to
an Equifax Issue (that is not a Certegy Issue). If Equifax does not
notify Certegy within such 30 day period that it objects to the
proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v)
below shall not apply, and Certegy shall have exclusive control over
all stages of the Tax Controversy, including full authority to
determine whether and in what manner to contest or compromise the
issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed
adjustment relating to an Equifax Issue (that is not a Certegy Issue),
then Certegy shall not thereafter consent to the adjustment or
compromise of such Equifax Issue without the consent of Equifax, but
shall cooperate with Equifax to resolve the Equifax Issue on a basis
acceptable to Equifax. Prior to the issuance of a notice of proposed
adjustment or similar stage in the proceedings, however, Certegy shall
be responsible for the conduct of the audit, including matters
pertaining to such Equifax Issue. Certegy shall notify Equifax in
advance of any conferences, meetings, and proceedings pertaining to
the audit and, at its own expense, Equifax shall have the right to
attend all such proceedings with any Tax Authority, the subject matter
of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or
similar stage in the proceedings, Equifax shall assume the conduct of
all further proceedings, with counsel selected by it, at Equifax's
sole expense, insofar as the proceedings relate to an Equifax Issue
(that is not a Certegy Issue), and thereafter
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Certegy and Equifax shall jointly be responsible for the conduct of
proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency
from the IRS, or a similar notice from any other Tax Authority, and
such notice relates exclusively to one or more Equifax Issues (none of
which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no
later than a date reasonably necessary to permit preparation and
timely filing of a petition in the United States Tax Court for
redetermination of the deficiency, or a court of similar jurisdiction
with respect to Taxes imposed by any other Tax Authority, Certegy
shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a
petition for redetermination of the deficiency pursuant to subsection
6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim
for refund, and (3) Equifax provides Certegy with sufficient funds to
pay the deficiency relating to the Equifax Issue, then Certegy (at
Equifax's sole expense) shall file a claim for refund thereof and, if
the claim is denied, bring an action in a court of competent
jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax
Court or other court of competent jurisdiction results in an adverse
determination with respect to the Equifax Issue, then Equifax shall
have the right to cause Certegy to appeal from such adverse
determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole
expense, shall be entitled to the extent permitted by law to
participate in (1) all conferences, meetings, or proceedings with any
Tax Authority, the subject matter of which is an Equifax Issue (that
is not a Certegy Issue), and (2) all appearances before any court, the
subject matter of which is an Equifax Issue (that is not a Certegy
Issue). The right to participate referred to in this subsection
6.1(d)(iv)(D) shall include the submission and content of
documentation, memoranda of fact and law and briefs, the conduct of
oral arguments or presentations, the selection of witnesses, and the
negotiation of stipulations of fact with respect to an Equifax Issue
(that is not a Certegy Issue).
(v) If the proposed adjustment relating to an Equifax Issue is
also a Certegy Issue (or if the proposed adjustment relates solely to
a Certegy Issue that is not an Equifax Issue), then Certegy shall be
fully responsible for the conduct of the Tax Controversy, including
matters pertaining to any Equifax Issue, but Certegy shall use
reasonable efforts to involve Equifax in the conduct of the Tax
Controversy insofar as it relates to any Equifax Issue. Certegy shall
notify Equifax in advance of any such proceedings and, at its own
expense, Equifax may attend all conferences, meetings, or proceedings
with any Tax Authority, the subject matter of which is or includes any
Equifax Issue. Certegy shall use all
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reasonable efforts to assist Equifax in resisting any deficiency
assertions by any Tax Authority relating to any such Equifax Issue.
6.2 Cooperation.
(a) Equifax and Certegy agree to afford full cooperation to one
another and to their respective representatives, if any, in any Tax Controversy
involving:
(i) any Tax Return filed or required to be filed by or for any
member of the Equifax Group or the Certegy Group for any Pre-
Distribution Period, or
(ii) any item or issue affecting Equifax's or Certegy's potential
liability hereunder.
(b) Such cooperation shall include, but not by way of limitation:
(i) preparing responses to information requests by any Tax
Authority;
(ii) making available books, records and other documentation
(including, but not by way of limitation, working papers and
schedules) relevant to such proceeding, and systems support for
documentation furnished in electronic form;
(iii) making directors, officers, or employees available to
appear in person for interview or for testimony;
(iv) making employees available on a mutually convenient basis to
provide additional information and explanation of materials provided
hereunder;
(v) executing powers of attorney, tax information authorizations
and any other necessary or appropriate authorizations;
(vi) executing agreements with the Tax Authority or other
documents reasonably necessary or appropriate for the settlement or
pursuit of the contest of such issue; and
(vii) doing whatever is reasonable under the circumstances to
assist the other party in proving that a transaction on or after the
Distribution Date does not give rise to Additional Restructuring
Taxes.
6.3 Record Retention. The parties, on behalf of themselves and the members
of their respective Affiliated Groups, agree to retain all books, records,
returns, schedules, documents and all material papers or relevant items of
information for periods prior to the Distribution Date for the later of (a)
seven (7) years or (b) the full period of the applicable statute of limitations,
including any extensions thereof. If, under legislation enacted after the date
of this Agreement, the statute of limitations with respect to a transaction does
not begin to run until the IRS or other Tax Authority is notified of the
transaction, then the statute of limitations for
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purposes of clause (b) of this Section 6.3 shall also not begin to run until
such notification is given.
ARTICLE VII
PAYMENTS
7.1 Payments in General. Any amount required to be paid by one party to the
other pursuant to this Agreement (other than the payments described in Sections
5.5 and 5.6 and subsection 6.1(c)(iv)(B) and 6.1(d)(iv)(B)) shall be paid in
immediately available funds within thirty (30) days after written demand
therefor from the other party given after a Final Determination of the amount
thereof.
7.2 Treatment of Payments. In absence of any change in Tax treatment under
the Code or other applicable Tax law, (a) any payments made pursuant to this
Agreement by Certegy to Equifax shall be reported for Tax purposes by the
parties as a distribution from Certegy to Equifax occurring on the Distribution
Date immediately before the Distribution; and (b) any payments made pursuant to
this Agreement by Equifax to Certegy shall be reported for Tax purposes by the
parties as a contribution to the capital of Certegy by Equifax occurring on the
Distribution Date immediately before the Distribution.
7.3 Interest on Late Payments. Any amount payable under this Agreement by
one party to another party shall, if not paid within ten (10) business days
after the due date specified in this Agreement, bear interest from such due date
until the date paid at the applicable Federal "short term rate" as defined in
section 6621 of the Code in effect on the due date.
7.4 Notice. Equifax and Certegy shall give each other prompt notice of any
payment that may be due under this Agreement.
7.5 Tax Items. Except to the extent already provided for in this Agreement,
the amount of any indemnification payment required hereunder shall be reduced to
take into account the Tax Benefit, if any, allowable to the indemnified party
resulting from the event giving rise to such indemnification payment and shall
be increased to take into account additional Taxes, if any, incurred by the
indemnified party resulting from the receipt of such indemnification payment and
any additional payment required by this section. The parties will cooperate with
each other in good faith to determine the amounts described in this section.
ARTICLE VIII
ADMINISTRATIVE PROVISIONS
8.1 Interest. Except as expressly provided herein, no obligation to pay or
right to collect interest or other amounts shall arise by virtue of this
Agreement.
8.2 Agency. It is understood and acknowledged that in accordance with
Regulations section 1.1502-77, Equifax, as the common parent, is the agent for
the members of the Affiliated Group of which Equifax is the common parent
(including all members of the Certegy Group with respect to taxable years
beginning before the Distribution Date) with respect to all matters referred to
therein.
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8.3 Expenses. Except as otherwise expressly provided herein, each party to
this Agreement hereby agrees to be responsible for all of the costs and expenses
which it may incur in carrying out its duties hereunder.
ARTICLE IX
DISPUTE RESOLUTION
Any controversy or claim between the parties arising out of or relating to
this Agreement, or the breach hereof not resolved in the normal course of
business shall be resolved pursuant to Section 15.10 of the Distribution
Agreement, which provisions are hereby incorporated herein by this reference
thereto.
ARTICLE X
MISCELLANEOUS
10.1 Entire Agreement. This Agreement constitutes the entire understanding
of the parties hereto with respect to the subject matter hereof, superseding all
negotiations, prior discussions and prior agreements and understandings relating
to such subject matter.
10.2 Severability. The provisions of this Agreement are severable and
should any provision hereof be void, voidable or unenforceable under any
applicable law, such provision shall not affect or invalidate any other
provision of this Agreement, which shall continue to govern the relative rights
and duties of the parties as though such void, voidable or unenforceable
provision were not a part hereof.
10.3 Amendment and Waiver. This Agreement may not be altered or amended,
nor may any rights hereunder be waived, except by an instrument in writing
executed by the party or parties to be charged with such amendment or waiver. No
waiver of any terms, provision or condition of or failure to exercise or delay
in exercising any rights or remedies under this Agreement, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, provision, condition, right or remedy or as a waiver of
any other term, provision or condition of this Agreement.
10.4 Successors and Assigns. Except to the extent provided by operation of
law or as provided herein, neither of the parties hereto may assign its rights
or delegate any of its duties under this Agreement without the prior written
consent of each other party. This Agreement shall be binding upon, and shall
inure to the benefit of, the successors and assigns of each party. If one or
more persons acquires all or substantially all of the assets of Equifax or
Certegy, Equifax and Certegy each agree that, as a condition to the closing of
such acquisition, such person or persons must agree to indemnify the nonacquired
party for any Restructuring Taxes incurred by that party as a result of such
acquisition.
10.5 Term. This Agreement shall commence on the date of execution indicated
above and shall continue in effect until otherwise agreed to in writing by the
parties or their successors and assigns.
10.6 Guarantee of Performance; Rights Confined to Parties.
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(a) Each party hereby guarantees the performance of all actions,
covenants, agreements, and obligations provided under this Agreement of each of
its subsidiaries. Each party shall, upon the written request of the other party,
cause any of its subsidiaries to formally execute this Agreement.
(b) Nothing contained in this Agreement, express or implied, is
intended to confer any benefits, rights or remedies upon any person or entity
other than members of the Equifax Group and the Certegy Group.
10.7 Notices. All notices and communications under this Agreement shall be
in writing and shall be deemed to have been given (a) when received, if such
notice or communication is delivered by facsimile, hand delivery or overnight
courier, and, (b) three (3) business days after mailing if such notice or
communication is sent by United States registered or certified mail, return
receipt requested, first class postage prepaid. All notices and communications,
to be effective, must be properly addressed to the party to whom the same is
directed at its address as follows::
If to Equifax, to: Equifax Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Chief
Financial Officer
with a copy to: Equifax Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxx, General
Counsel
If to Certegy, to: Certegy Inc.
000 XxxxxXxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Corporate
Vice President, General Counsel
and Secretary
with a copy to: Certegy Inc.
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx,
Corporate Vice President and
Chief Financial Officer
Either party may, by written notice delivered to the other party in
accordance with this Section 10.7, change the address to which delivery of any
notice shall thereafter be made.
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10.8 Further Assurances and Consents. In addition to the actions
specifically provided for elsewhere in this Agreement, each of the parties
hereto will use its reasonable efforts to (a) execute and deliver such further
instruments and documents and take such other actions as any other party may
reasonably request in order to effectuate the purposes of this Agreement and to
carry out the terms hereof and (b) take, or cause to be taken, all actions, and
do, or cause to be done, all things, reasonably necessary, proper or advisable
under applicable laws, regulations and agreements or otherwise to consummate and
make effective the transactions contemplated by this Agreement; provided that no
party hereto shall be obligated to pay any consideration therefor (except for
filing fees and other similar charges) to any third party from whom such
consents, approvals and amendments are requested or to take any action or omit
to take any action if the taking of or the omission to take such action would be
unreasonably burdensome to the party or its Group or the business thereof.
10.9 Headings. The Article and Section headings set forth in this Agreement
are included for administrative, organizational and convenience purposes, and
are not intended to affect the meaning of the provisions set forth in this
Agreement or to be used in the interpretation of this Agreement.
10.10 Governing Law. This Agreement shall be construed in accordance with,
and governed by, the laws of the State of Georgia, without regard to the
conflicts of law rules of such state.
10.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original instrument, but all of
which together shall constitute but one and the same agreement.
10.12 Prior Tax Sharing Agreements. This Agreement shall supersede any and
all tax sharing and indemnification (or similar) agreements between any of the
members of the Equifax Group, on the one hand, and any of the members of the
Certegy Group, on the other hand.
[signatures appear on following page]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
EQUIFAX INC.
By: /s/ Xxxx X. Xxxx
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Title: Corporate Vice President,
General Counsel and Secretary
CERTEGY INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Corporate Vice President,
General Counsel and Secretary
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EXHIBIT A
Foreign Restructuring
1. Transfer of shares of Acrofax, Inc. from Equifax Credit Information
Services, Inc. to Equifax and transfer of shares of Telecredit Canada Inc.
from Equifax Canada Inc. to Equifax, including all interim transactions
related to such transfer (the "Canadian Restructuring").
2. Transfer of shares of Procard S.A. from Equifax de Chile, S.A. to Payment
Chile, S.A. ("Payment Chile") and transfer of shares of Payment Chile to
Payment South America Holdings, Inc. ("Payment South America"), including
all interim transactions related to such transfers (the "Chilean
Restructuring").
3. Transfer of shares of Xxxxxx-Solucoes em Meios de Pagamento Ltda.
("Xxxxxx"), Equifax Cayman Islands, Ltd. and Partech Ltda. ("Partech") from
Equifax do Brasil Ltda to Payment Brasil Holdings Ltda. ("Payment Brazil")
and transfer of shares of Payment Brazil to Payment South America,
including all interim transactions related to such transfers (the
"Brazilian Restructuring").
4. Transfer of certain assets of Equifax plc related to U.K. Payment Services
Business and stock of Transax plc and Certegy Card Solutions Ltd. to
Certegy Ltd. ("Certegy U.K."), and transfer of shares of Certegy U.K. to
Equifax, including all interim transactions related to such transfers (the
"U.K. Restructuring").
EXHIBIT B
Contemplated Restructuring Taxes
1. Canadian income/withholding Tax on Canadian Restructuring transactions.
2. Income/capital gain Tax on Brazilian Restructuring transactions.
3. Income/capital gain Tax on Chilean Restructuring transactions.
EXHIBIT C
SPECIAL REFUND CLAIMS
Jurisdiction Tax Year
--------------------------------- -------------------------------------
Alabama -- income & franchise tax 1996, 1997, 1998
Alaska 1998
Arizona 1997, 1998
California Pre -- 1996, 1996, 1997, 1998
Colorado 1997
Connecticut 1998
Delaware 1998
Florida Pre -- 1996, 1996, 1997, 1998
Georgia 1996, 1997, 1998, 1999
Idaho 1996, 1997, 1998
Illinois 1996, 1997, 1998, 1999
Indiana 1998
Iowa 1999
Kansas 1996
Kentucky 1997, 1998
Louisiana Pre -- 1996, 1996, 1997, 1998, 1999
Massachusetts 1998
Michigan Pre -- 1996, 1996, 1998
Minnesota 1999
Mississippi 1996, 1999
Missouri 1996, 1997, 1998, 1999
Missouri Franchise 1996
Montana 1996, 1997, 1998
New Hampshire 1996
New Jersey Pre -- 1996, 1996, 1997, 1998
New Mexico 1996, 1997, 1998
New York state 1996, 1997, 1998
New York MTA 1996, 1997, 1998
New York city 1996, 1997, 1998
North Carolina 1996, 1997, 1998
Ohio 1996, 1997, 1998
Oregon 1998
Pennsylvania 1996, 1997, 1998
Philadelphia 1997, 1998
South Carolina 1997, 1998
Tennessee 1996, 1997
Utah 1997
Virginia 1996, 1997
Other Franchise Other refund claims totaling $50,736.
