TAX SHARING AND INDEMNIFICATION AGREEMENT
By and Between
GENROCO, INC.
and
VIDEOPROPULSION, INC.
Dated ------- --, 2000
TABLE OF CONTENTS
TAX SHARING AND INDEMNIFICATION AGREEMENT
Page
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ARTICLE I DEFINITIONS 2
1.1 Affiliated Group 2
1.2 GENROCO Group 2
1.3 VideoPropulsion Group 2
1.4 Business of VideoPropulsion 2
1.5 Code 2
1.6 Consolidated Returns 2
1.7 Contribution 2
1.8 Distribution 2
1.9 Date of Distribution or Distribution Date 2
1.10 Expenses 3
1.11 Final Determination 3
1.12 IRS 3
1.13 Party 3
1.14 Personal and Real Property Taxes 3
1.15 Restructuring Taxes 3
1.16 Significant Audit Issue 3
1.17 Tainting Act 4
1.18 Tax Benefit 4
1.19 Tax or Taxes 4
1.20 Tax Controversy 4
1.21 Tax Item 4
1.22 Tax Returns 4
ARTICLE II LIABILITY FOR PRE-DISTRIBUTION AND OTHER TAX LIABILITIES 5
2.1 Income Taxes 5
(a) Current and Prior Periods 5
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(b) Future Periods 5
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2.2 Property Taxes 5
2.3 5
2.4 Restructuring Taxes 6
(a) Generally 6
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(b) Indemnification for Tainting Acts 6
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ARTICLE III REFUNDS OF TAXES 7
3.1 Refunds and Credits 7
3.2 Exports 7
ARTICLE IV TAX RETURN PREPARATION 7
4.1 Consolidated Returns 7
4.2 Pre-Distribution Returns 7
4.3 Post-Distribution Returns 7
4.4 Cooperation; Exchange of Information 8
ARTICLE V TAX AUDITS 8
5.1 Tax Controversies 8
5.2 Cooperation 8
5.3 Record Retention 8
ARTICLE VI PAYMENTS 9
6.1 Payments in General 9
6.2 Interest on Late Payments 9
6.3 Character and Effect of Payments 9
ARTICLE VII OTHER TAX MATTERS 10
7.1 10
7.2 10
ARTICLE VIII ADMINISTRATIVE PROVISIONS 10
8.1 Interest 10
8.2 Agency 10
8.3 Expenses 10
ARTICLE IX DISPUTE RESOLUTION 10
9.1 General 10
9.2 Arbitration 11
9.3 Legal Proceedings 11
ARTICLE X MISCELLANEOUS 11
10.1 Enforceability 11
10.2 Modification of Agreement 11
10.3 Successors and Assigns 11
10.4 Term 11
10.5 Rights Confined to Parties 11
10.6 Notices 12
10.7 Effect of Headings 12
10.8 Governing Law 12
10.9 Counterparts 12
TAX SHARING AND INDEMNIFICATION AGREEMENT
This Tax Sharing and Indemnification Agreement dated ------- --, 2000, is
entered into by and between GENROCO, INC., a Wisconsin corporation
("GENROCO"), and VIDEOPROPULSION, INC., a Wisconsin corporation
("VideoPropulsion").
WHEREAS, VideoPropulsion is a Wisconsin corporation formed on October --,
1999 that recently has acquired the assets and liabilities of GENROCO's
division known as the Video Division (the "Division") pursuant to a separate
Contribution Agreement Plan and Agreement of Reorganization and Distribution
dated ------- --, 2000 (the "Contribution Agreement"); and
WHEREAS, GENROCO is the common parent and VideoPropulsion is currently a
member of an "affiliated group", as that term is defined in Section 1504 of
the Code, which now files consolidated federal income tax returns; and
WHEREAS, pursuant to the Contribution Agreement, GENROCO and
VideoPropulsion have agreed to a Plan and Agreement of Reorganization and
Distribution (the "Plan") which provides for the pro rata distribution to
GENROCO shareholders of all of the outstanding shares of the common stock of
VideoPropulsion (the "Distribution"); and
WHEREAS, as a consequence of the Distribution VideoPropulsion will no
longer be a subsidiary of GENROCO and will no longer be a member of GENROCO's
affiliated group; and
WHEREAS, pursuant to Treas. Reg. Section 1.1502-6, GENROCO and each
subsidiary which was a member of the GENROCO Group (as hereinafter defined)
during any part of a consolidated return year is severally liable for the
consolidated federal income tax liability of the GENROCO group for such year;
and
WHEREAS, GENROCO or VideoPropulsion might be liable for certain taxes as a
result of the transfer of assets and liabilities to VideoPropulsion pursuant
to the Contribution Agreement and the Distribution pursuant to the Plan; and
WHEREAS, GENROCO and VideoPropulsion 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
liabilities that may be asserted in connection with the Distribution.
NOW THEREFORE, GENROCO on behalf of itself and members of the GENROCO
Group other than VideoPropulsion and its subsidiary, and VideoPropulsion, on
behalf of itself and its subsidiary of the VideoPropulsion Group (as
hereinafter defined), in consideration of the mutual covenants contained
herein, agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following definitions shall apply:
1.1 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.
1.2 GENROCO GROUP means, for each taxable period, the Affiliated Group of
which GENROCO or any successor of GENROCO is the common parent.
1.3 VIDEOPROPULSION GROUP means (i) with respect to periods prior to the
Date of Distribution, the Division, and (ii) with respect to periods after the
Date of Distribution, the Affiliated Group of which VideoPropulsion or any
successor of VideoPropulsion is the common parent.
1.4 BUSINESS OF VIDEOPROPULSION means the Business of the Division as
defined in the Contribution Agreement and Exhibits thereto, including any
capitalized interest applicable to assets of Division.
1.5 CODE means the Internal Revenue Code of 1986, as amended from time to
time.
1.6 CONSOLIDATED RETURNS means the consolidated United States federal
income tax returns of the GENROCO Group for consolidated return years
beginning before the Date of Distribution and any consolidated or combined
state income tax returns of any members of the GENROCO Group for taxable years
beginning before the Date of Distribution.
1.7 CONTRIBUTION shall mean the transfer to VideoPropulsion by GENROCO of
the Business of VideoPropulsion pursuant to the Contribution Agreement.
1.8 DISTRIBUTION shall mean the distribution by GENROCO of the stock of
VideoPropulsion to GENROCO shareholders pursuant to the Plan.
1.9 DATE OF DISTRIBUTION or DISTRIBUTION DATE means 12:01 a.m. Central
Standard Time on [May 1, 2000, or such other date as to which the parties
hereto may agree], at which time the GENROCO Group ceases to own at least 80%
of the vote and value of the stock of VideoPropulsion within the meaning of
Section 1504 of the Code and thus the date on which VideoPropulsion ceases to
be a member of the GENROCO Group.
1.10 EXPENSES means out-of-pocket expenses paid to third party providers
and shall not include any overhead or indirect costs.
1.11 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 agreement form under the laws of other jurisdictions, except that a
Form 870 or 870-AD or comparable form that reserves the right of the taxpayer
to file a claim for refund and/or the right of the taxing authority to assert
a further deficiency shall not constitute a Final Determination, to the extent
of the reservation; (ii) by a decision, judgment, decree, or other order by a
court or agency 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 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 statutes of limitations.
1.12 IRS means the Internal Revenue Service.
1.13 PARTY means either of the parties to this Agreement.
1.14 PERSONAL AND REAL PROPERTY TAXES mean all Taxes which are assessed
upon the value of real or personal property owned, leased, rented or used by
any member of the GENROCO Group or the VideoPropulsion Group, including, but
not limited to, real and personal property taxes, use taxes, value added taxes
or other ad valorem taxes.
1.15 RESTRUCTURING TAXES means any Taxes resulting from the Contribution
of the Business of VideoPropulsion pursuant to the Contribution Agreement and
the Distribution of the stock of VideoPropulsion pursuant to the Plan,
including, without limitation, any transfer taxes or any Tax imposed pursuant
to or as a result of Section 311, 355(c), 361 or 1001 of the Code.
1.16 SIGNIFICANT AUDIT ISSUE means an issue raised in connection with a
Tax Return pertaining to the Business of VideoPropulsion if the amount of the
proposed increase in income attributable to the issue for any taxable period
(less any proposed decrease in income attributable to the issue for any other
taxable period of the GENROCO Group) exceeds $25,000 or if the proposed
increase in Tax (not including interest or penalties) attributable to the
issue for any taxable period (less any proposed decrease in Tax attributable
to the issue for any other taxable period of the GENROCO Group) exceeds the
product of $25,000 multiplied by the maximum statutory marginal rate of
federal income taxation imposed on corporations for such taxable period. For
this purpose, an issue means all Tax Items of a similar type that are proposed
to be adjusted for the same reason. Notwithstanding anything provided in this
section 1.16 to the contrary, a Significant Audit Issue shall not include an
issue relating to Restructuring Taxes unless VideoPropulsion receives a Tax
Benefit in years subsequent to the Distribution as a result of such increase
in income.
1.17 TAINTING ACT means (i) any breach of any representation or covenant
as set forth in a letter dated [----------------] to Xxxxxxx & Xxxxx LLP
relating to the qualification of the Contribution and Distribution as a
distribution described in Section 355 of the Code given by VideoPropulsion or
(ii) any transaction publicly announced or consummated within the two-year
period following the Distribution Date that results in the shareholders of
VideoPropulsion after the Distribution losing control of VideoPropulsion
within the meaning of Code section 368(c) or in VideoPropulsion ceasing to own
and operate the Business of VideoPropulsion (in either a taxable or tax-free
transaction) unless (i) GENROCO consents in writing or (ii) GENROCO is
provided (at VideoPropulsion's expense) with an IRS ruling that it will not
cause the Distribution to fail to qualify as a distribution described in
Section 355 of the Code.
1.18 TAX BENEFIT means any Tax Item which decreases Taxes paid or payable.
1.19 TAX OR TAXES means all forms of taxation, whenever created or
imposed, whether domestic or foreign, and whether imposed by a nation,
locality, municipality, government, state, federation, or other body (a
"Taxing 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 of 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 Taxing Authority.
1.20 TAX CONTROVERSY means any audit, examination, dispute, suit, action,
litigation or other judicial or administrative proceeding by or against the
IRS or any other Taxing Authority.
1.21 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.
1.22 TAX RETURNS means all reports, estimates, declarations of estimated
tax, information statements, returns or other documents required to be filed
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
LIABILITY FOR PRE-DISTRIBUTION AND OTHER TAX LIABILITIES
2.1 INCOME TAXES.
(a) Current and Prior Periods. Except as otherwise provided in this
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Agreement, GENROCO shall pay, on a timely basis, all Taxes based upon income of
the GENROCO Group for the taxable year that includes the Distribution Date (the
"1999 Income Taxes") and for all periods ending prior to the Distribution Date.
GENROCO hereby assumes all such liability and shall indemnify and hold harmless
VideoPropulsion and any member of the VideoPropulsion Group from and against
any share or amount of the 1999 Income Taxes and all income taxes based upon
income of the GENROCO Group for periods ending prior to the Distribution Date.
(b) Future Periods. Except as otherwise provided in this Agreement,
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VideoPropulsion shall pay, on a timely basis, all Taxes based upon income of
the VideoPropulsion Group for any period beginning after the Distribution Date,
and shall indemnify and hold harmless GENROCO and any member of the GENROCO
Group from and against all income taxes based upon the income of the
VideoPropulsion Group for any period beginning after the Distribution Date.
2.2 PROPERTY TAXES. Personal and Real Property Taxes for any period
after January 1, 2000 on property of the Business of VideoPropulsion
(including, but not limited to, the prorated portion of Wisconsin Personal and
Real Property Taxes on such property which are based on the value of such
property on January 1, 2000) shall be the liability of VideoPropulsion. All
other Personal and Real Property Taxes for any period prior to January 1, 2000
shall be the liability of GENROCO. VideoPropulsion shall indemnify and hold
harmless GENROCO and any member of the GENROCO Group from and against all
Personal and Real Property Taxes on property of the Business of
VideoPropulsion apportioned to VideoPropulsion hereunder. GENROCO shall
indemnify and hold harmless VideoPropulsion and any member of the
VideoPropulsion Group from and against all Personal and Real Property Taxes
apportioned to GENROCO hereunder.
2.3 Notwithstanding any other provision of this Agreement to the
contrary, VideoPropulsion shall pay, and shall indemnify and hold harmless
GENROCO and any member of the GENROCO Group from and against:
(a) Taxes attributable to a Significant Audit Issue but only to the
extent that (i) such Taxes are attributable to that portion of a Significant
Audit Issue that exceeds a $25,000 increase in income attributable to the
issue for any taxable period (less any decrease in income attributable to the
issue for any other taxable period of the GENROCO Group) or (ii) the increase
in Tax (not including interest and penalties) attributable to such issue for
any taxable period (less any decrease in Tax attributable to the issue for any
other taxable period of the GENROCO Group) exceeds the product of $25,000
multiplied by the maximum statutory marginal rate of federal income taxation
imposed on corporations for such taxable period;
(b) any Tax liability with respect to separate returns for foreign,
state or local taxes on or measured by income filed by GENROCO or a GENROCO
subsidiary with respect to the Business of VideoPropulsion to the extent it
results in a Tax Benefit to the VideoPropulsion Group (such as the
disallowance of a deduction claimed by GENROCO or a subsidiary of GENROCO in a
year prior to the Distribution that is available to VideoPropulsion or a
subsidiary of VideoPropulsion in a period after the Distribution);
(c) any sales, use, property, transfer, value added, recordation,
excise and similar Taxes with respect to the Business of VideoPropulsion which
are not Restructuring Taxes and which are generated by transactions occurring
on or after January 1, 2000; and
(d) any payroll Taxes with respect to employees of VideoPropulsion
or a VideoPropulsion subsidiary or of the Business of VideoPropulsion which
relate to periods after January 1, 2000.
2.4 RESTRUCTURING TAXES.
(a) Generally. Notwithstanding any other provision of this
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Agreement to the contrary, and except as otherwise provided in section 2.3(a)
and subsection (b) hereof, GENROCO shall pay, and shall indemnify and hold
harmless VideoPropulsion and any member of the VideoPropulsion Group from and
against, any and all Restructuring Taxes.
(b) Indemnification for Tainting Acts. Anything in this Agreement
---------------------------------
to the contrary notwithstanding, VideoPropulsion shall pay, and shall indemnify
and hold harmless GENROCO from and against, (i) any Restructuring Taxes and
related Expenses, (ii) any liability and related Expenses resulting from a
decision that GENROCO is liable to GENROCO or VideoPropulsion shareholders
because of a Final Determination that the Distribution failed to meet the
requirements of Section 355 of the Code for nonrecognition of gain or loss, and
(iii) any Taxes and related Expenses payable by GENROCO by reason of the
receipt of such payment, to the extent such Restructuring Taxes, liability to
shareholders, Taxes, or Expenses would not have been imposed but for a Tainting
Act of VideoPropulsion or any member of the VideoPropulsion Group.
ARTICLE III
REFUNDS OF TAXES
3.1 REFUNDS AND CREDITS. Except as set forth in section 3.2, GENROCO
shall be entitled to retain or be paid all refunds of Tax received, whether in
the form of payment, credit or otherwise, from any Taxing Authority with
respect to any Tax Returns filed or to be filed by GENROCO.
3.2 EXPORTS. VideoPropulsion shall be entitled to any refund or credit
of superfund excise Taxes or customs duties drawbacks received by GENROCO or a
GENROCO Subsidiary with respect to goods exported by VideoPropulsion.
ARTICLE IV
TAX RETURN PREPARATION
4.1 CONSOLIDATED RETURNS.
(a) GENROCO shall prepare and timely file all Consolidated Returns.
The Consolidated Returns shall be prepared and filed by GENROCO in compliance
with applicable tax laws and on a basis that is consistent with any IRS ruling
or opinion of tax counsel obtained by GENROCO in connection with the
Contribution and Distribution and with the provisions of Article VII hereof,
and, subject to the foregoing, consistent with GENROCO's prior Consolidated
Returns.
(b) VideoPropulsion shall be responsible for preparing all
information relating to the VideoPropulsion Group necessary for GENROCO to
prepare and file the Consolidated Returns.
4.2 PRE-DISTRIBUTION RETURNS. All Tax Returns required to be filed for
periods beginning before, or beginning and ending on the Distribution Date,
shall be filed by GENROCO.
4.3 POST-DISTRIBUTION RETURNS. All Tax Returns of the VideoPropulsion
Group for periods beginning after the Distribution Date (including all tax
returns related to Wisconsin Personal and Real Property Taxes on property of
the Business of VideoPropulsion which are based on the value of such property
on or after January 1, 1999) shall be filed by VideoPropulsion, and all Tax
Returns of the GENROCO Group for periods beginning after the Distribution Date
shall be filed by GENROCO. VideoPropulsion, with the assistance of GENROCO as
needed, shall be responsible for filing all Forms 1099, if any, due with
respect to the receipt by shareholders of any cash in lieu of fractional
shares in the Distribution.
4.4 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, 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.
ARTICLE V
TAX AUDITS
5.1 TAX CONTROVERSIES.
(a) Except as otherwise provided in this Article VI, GENROCO shall
have full responsibility and discretion in handling, settling or contesting
any Tax Controversy involving a Tax Return for which it has filing
responsibility, and VideoPropulsion shall have full responsibility and
discretion in handling, settling or contesting any Tax Controversy involving a
Tax Return for which it has filing responsibility, and any legal and
accounting costs incurred in handling, settling or contesting any Tax
Controversy shall be borne by the Party having full responsibility and
discretion therefor.
(b) The Party responsible for any Tax Controversy shall use all
reasonable efforts to resist any deficiency assertions by any Taxing Authority
regardless of which Party is ultimately responsible for any such Tax under
this Agreement.
(c) GENROCO shall notify VideoPropulsion promptly if any Taxing
Authority proposes an adjustment relating in whole or in part to (i)
Restructuring Taxes for which VideoPropulsion could be liable to GENROCO
pursuant to Section 2.4 hereof or (ii) Taxes for which VideoPropulsion could
be liable to GENROCO pursuant to Section 2.3 hereof (a "VideoPropulsion
Indemnity Issue").
(d) VideoPropulsion and its representatives, at VideoPropulsion's
expense, shall be entitled to participate in (i) all conferences, meetings, or
proceedings with any Taxing Authority, the subject matter of which is or
includes a VideoPropulsion Indemnity Issue, and (ii) all appearances before
any court, the subject matter of which includes a VideoPropulsion Indemnity
Issue; provided, however, that GENROCO shall have full responsibility,
discretion and control of all such conferences, meetings, proceedings, and
appearances.
5.2 COOPERATION. GENROCO and VideoPropulsion agree to afford full
cooperation to one another and to their respective representatives, if any, in
any Tax Controversy.
5.3 RECORD RETENTION. The parties agree to retain all books, records,
returns, schedules, documents and all material papers or relevant items of
information for periods prior to the Date of Distribution for the later of (i)
seven (7) years or (ii) the full period of the applicable statute of
limitations, including any extensions thereof.
ARTICLE VI
PAYMENTS
6.1 PAYMENTS IN GENERAL. Except as otherwise provided in this Agreement,
any amount required to be paid by one Party pursuant to this Agreement 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, provided that if any portion of a VideoPropulsion Indemnity
Issue results in both (i) an additional liability of GENROCO for Taxes and
(ii) a corresponding Tax Benefit to the VideoPropulsion Group in a taxable
period beginning after the Distribution Date, then payment with respect to
such portion of the VideoPropulsion Indemnity Issue shall not be due prior to
120 days after the close of the taxable period in which such Tax Benefit is
realized.
6.2 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.
6.3 CHARACTER AND EFFECT OF PAYMENTS. The Parties agree that for income
and other Tax purposes all amounts paid pursuant to this Agreement by one
Party to the other Party (other than interest payments pursuant to Section
7.2) shall be treated by the Parties as adjustments of the cash amount due to
VideoPropulsion under Exhibit D of the Contribution Agreement on the Date of
Distribution. All other payments made by either Party pursuant to this
Agreement directly to third parties shall be treated as the discharge of
liabilities incurred by such Party with respect to transactions occurring on
or before the Date of Distribution. Except as provided in section 2.4(b), if,
notwithstanding such treatment by the Parties, any payment by either Party is
determined to be taxable to the other Party by any Taxing Authority, the payor
shall also indemnify the other Party for fifty percent (50%) of the amount of
any Taxes and related Expenses payable by the other Party by reason of the
receipt of such payment. In addition, the amount of any indemnity payment due
under this Agreement shall be computed by properly taking into account any Tax
Benefit actually realized by the recipient from the payment of the item at
issue.
ARTICLE VII
OTHER TAX MATTERS
7.1 VideoPropulsion agrees (i) to pay on or before March 15, 2000 any
recurring items within the meaning of Code section 461(h)(3) which had been
accrued by GENROCO at the end of its fiscal year which ended in 1999 and for
which VideoPropulsion is responsible and (ii) to pay on or before March 15,
1996 any other recurring item within the meaning of Code section 461(h)(3)
which has been accrued by GENROCO on the Date of Distribution and for which
VideoPropulsion is responsible.
7.2 GENROCO shall be entitled to any tax deductions arising from the
exercise of stock options on GENROCO stock by VideoPropulsion employees who
were retired as of the Date of Distribution or who continued employment with
VideoPropulsion after the Date of Distribution but retained options on GENROCO
stock.
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
Section 1.1502-77 of the IRS Regulations, GENROCO, as the common parent of the
GENROCO Group, is the agent for the GENROCO Group (including VideoPropulsion
and the VideoPropulsion Group with respect to their taxable years beginning
before the Date of Distribution) with respect to all matters referred to
therein.
8.3 EXPENSES. Except as otherwise provided in this Agreement, each Party
to this Agreement hereby agrees to be responsible for all of the expenses
which it may incur in carrying out its duties hereunder.
ARTICLE IX
DISPUTE RESOLUTION
9.1 GENERAL. In an effort to resolve informally and amicably any claim
or controversy arising out of or related to the interpretation or performance
of this Agreement without resorting to litigation, a party shall first notify
the other of any difference or dispute hereunder that requires resolution.
GENROCO and VideoPropulsion each shall designate an employee to investigate,
discuss and seek to settle the matter between them. If the two are unable to
settle the matter within 30 days after such notification (or such longer
period as may be agreed upon), the matter shall be submitted to a senior
officer of GENROCO and VideoPropulsion, respectively, for consideration.
9.2 ARBITRATION. If settlement cannot be reached through the efforts of
the senior officers within an additional 30 days or such longer period as may
be agreed upon, the parties shall consider arbitration or other alternative
means to resolve the dispute.
9.3 LEGAL PROCEEDINGS. If the parties are unable to agree on an
alternative dispute resolution mechanism within 30 days, either party may
initiate legal proceedings to resolve such matter.
ARTICLE X
MISCELLANEOUS
10.1 ENFORCEABILITY. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable, the
enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby.
10.2 MODIFICATION OF AGREEMENT. No modification, amendment or waiver of
any provision of this Agreement shall be effective unless the same shall be in
writing, and signed by each of the Parties hereto and then such modification,
amendment or waiver shall be effective only in the specific instance and for
the purpose for which given.
10.3 SUCCESSORS AND ASSIGNS. Except as hereinafter provided, neither this
Agreement nor any rights hereunder shall be assignable or transferable by
either Party hereto, without the prior written consent of the other Party
hereto, except by operation of law. Each Party hereby guarantees the
performance of all actions, agreements and obligations provided for under this
Agreement of each of its subsidiaries. Each Party shall, upon the written
request of the other Party, cause any of its subsidiaries formally to execute
this Agreement. This Agreement shall be binding upon, and shall inure to the
benefit of, the successors, assigns and persons controlling any of the
corporations bound hereby for so long as such successors, assigns or
controlling persons are a subsidiary of a Party or its successors and assigns
by operation of law.
10.4 TERM. This Agreement shall commence on the date of execution
indicated below and shall continue in effect until otherwise agreed to in
writing by the Parties or their successors. Notwithstanding any other
provision in this Agreement, this Agreement shall remain in effect and its
provisions shall survive for the full period of all applicable statutes of
limitation (giving effect to any extension, waiver or mitigation thereof).
10.5 RIGHTS CONFINED TO PARTIES. Nothing expressed or implied herein is
intended or shall be constructed to confer upon or to give to any person, firm
or corporation (other than the Parties hereto, members of their Affiliated
Groups, and their successors and assigns) any right, remedy or claim under or
by reason of this Agreement or of any term, covenant or condition hereof. All
terms, covenants, conditions, promises and agreements contained herein shall
be for the sole and exclusive benefit of the Parties hereto, the members of
their Affiliated Groups, and their successors and assigns.
10.6 NOTICES. All demands, notices and communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by certified or registered United States Mail,
postage prepaid, to:
(a) in the case of GENROCO, Inc.
GENROCO, Inc.
000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: CEO
(b) in the case of VideoPropulsion, Inc.
VideoPropulsion, Inc.
000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: CEO
10.7 EFFECT OF HEADINGS. The paragraph headings herein are for
convenience only and shall not affect the construction hereof.
10.8 GOVERNING LAW. The provisions of this Agreement and all rights and
obligations of the parties hereunder shall be governed by the internal laws of
the State of Wisconsin.
10.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall, when so executed, be considered an original
and all of which, taken together, shall be considered one document.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers this ---- day of -------, 2000.
GENROCO, INC.
By-----------------------------------
Xxxxx Xxxx
Executive Vice President and
Chief Financial Officer
VIDEOPROPULSION, INC.
By-----------------------------------
Xxxxx Xxxx
Executive Vice President and
Chief Technical Officer
