Exhibit 10.4
TAX SHARING AGREEMENT
This TAX SHARING AGREEMENT (the "Agreement") entered into by and between GP
Strategies Corporation, a Delaware corporation ("GP"), and National Patent
Development Corporation, a Delaware corporation ("NPDC"), shall be effective as
of , 2004. Unless otherwise defined in Article I hereof, capitalized terms used
herein shall have the respective meanings assigned to them in the Distribution
Agreement by and between GP and NPDC (the "Distribution Agreement").
WHEREAS, NPDC desires that it and its Subsidiaries, to the extent required by
applicable federal, state, local or foreign law, be included in the combined,
consolidated and unitary state, local and foreign Tax Returns filed on behalf of
the GP Affiliated Group;
WHEREAS, GP and NPDC and their respective Subsidiaries wish to allocate and
settle among themselves in an equitable manner the consolidated federal income
Tax liability of the GP Affiliated Group;
WHEREAS, GP and NPDC and their respective Subsidiaries wish to allocate and
settle among themselves in an equitable manner the state, local or foreign Tax
liability associated with such combined, consolidated and unitary state, local
and foreign Tax Returns;
WHEREAS, GP and NPDC have entered into the Distribution Agreement, providing for
the separation of the NPDC Group from the GP Affiliated Group;
WHEREAS, pursuant to the terms of the Distribution Agreement, GP will contribute
all of the NPDC Assets to NPDC and will cause NPDC to assume the NPDC
Liabilities;
WHEREAS, for federal income Tax purposes, it is intended that the Corporate
Restructuring Transactions and Distribution constitute a tax-free reorganization
under the provisions of Sections 355, 361, and 368 of the Internal Revenue Code
of 1986, as amended (the "Code");
WHEREAS, at the end of the day on which the Distribution occurs, the taxable
year of NPDC and its Subsidiaries shall close for U.S. federal income Tax
purposes;
WHEREAS, it is appropriate and desirable for GP and NPDC and their respective
Subsidiaries to set forth the principles and responsibilities of the parties to
this Agreement regarding future Adjustments with respect to Taxes, Tax
Proceedings and other related Tax matters.
NOW, THEREFORE, the parties, intending to be legally bound, agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall be
defined as follows:
1.1. Adjustment shall mean the increase or decrease in a Tax, determined on an
issue-by-issue or transaction-by-transaction basis, as appropriate, resulting
from an adjustment made or proposed by a Governmental Authority with respect to
any amount reflected or required to be reflected on any Tax Return relating to
such Tax.
1.2. Agreement shall have the meaning set forth in the first paragraph hereof.
1.3. Allocated Taxable Income (Loss) shall mean, with respect to the NPDC Group
and the GP Group, the amount equal to (i) such Group's contribution to the gross
income of the GP Affiliated Group, net of (ii) the aggregate of all losses,
deductions and other Tax attributes of such Group to the extent the same may be
used by any member of the GP Affiliated Group. For purposes of the federal
alternative minimum Tax ("AMT"), Allocated Taxable Income (Loss) shall mean,
with respect to the NPDC Group and the GP Group, the amount equal to (i) such
Group's contribution to the gross income for AMT purposes of the GP Affiliated
Group, net of (ii) the aggregate of all losses, deductions and other Tax
attributes for AMT purposes of such Group to the extent the same may be used by
any member of the GP Affiliated Group. In the case of any state or local
combined, consolidated, or unitary income or franchise Taxes which are required
to be reported on a Joint Return, the amount of Allocated Taxable Income (Loss)
of the NPDC Group and the GP Group shall be equal to the product of such Group's
income (loss) and the apportionment factors (property, payroll, sales),
calculated on a consolidated basis, unless such amount is determined pursuant to
another allocation method that is agreed with or mandated by a specific
jurisdiction. For purposes of the preceding sentence, the apportionment factors
shall be determined for each taxable period. In the case of any federal income
Tax, AMT, or state or local combined, consolidated or unitary income or
franchise Taxes which are required to be reported on a Joint Return, the
Allocated Taxable Income (Loss) of the GP Group shall include any income or loss
that cannot be attributed to any one of the Groups under this Agreement, except
as otherwise provided herein or in the Distribution Agreement.
1.4. AMT shall have the meaning set forth in the definition of Allocated Taxable
Income (Loss).
1.5. AMT NOL shall have the meaning set forth in Section 2.5(b) hereof.
1.6. AMTI shall have the meaning set forth in Section 2.5(a) hereof.
1.7. AMTL shall have the meaning set forth in Section 2.5(a) hereof.
1.8. Code shall have the meaning set forth in the recitals hereto.
1.9. Combined Return shall mean any combined, consolidated or unitary state or
local income or franchise Tax Return.
1.10. Controlling Party shall mean GP or any other member of the GP Group or
NPDC or any other member of the NPDC Group, as the case may be, that filed or,
if no such Tax Return has been filed, was required to file, a Tax Return that is
the subject of any Tax Proceeding, or any successor and/or assign of any of the
foregoing; provided, however, that (i) in the case of any GP Affiliated Group
federal consolidated income Tax Return or Combined Return or Non-Income Tax
Return that is a Joint Return for a Pre-Distribution Taxable Period, GP shall be
the Controlling Party; and (ii) in the case of a Separate Return filed or
required to be filed by any member of the NPDC Group, NPDC shall be the
Controlling Party.
1.11. Designated Rate shall mean the underpayment rate as defined in Section
6621 of the Code.
1.12. Disputed Adjustment has the meaning set forth in Section 9.6(b) hereof.
1.13. Distribution Agreement shall have the meaning set forth in the first
paragraph hereof.
1.14. DIT shall mean any "deferred intercompany transaction" or "intercompany
transaction" within the meaning of Section 1.1502-13 of the Regulations (or any
predecessor or successor provision thereto), and for purposes of this agreement
shall include any excess loss account within the meaning of Section 1.1502-19 of
the Regulations (or any predecessor or successor provision thereto).
1.15. Effective Date shall mean , 2004.
1.16. Federal CNOL shall have the meaning set forth in Section 2.2(b) hereof.
1.17. Final Determination means (i) a decision, judgment, decree or other order
by any court of competent jurisdiction, which has become final and is either no
longer subject to appeal or as to which a determination not to appeal has been
made; (ii) a closing agreement made under Section 7121 of the Code or any
comparable foreign, state, local or other Tax statute; (iii) a final disposition
by any Governmental Authority of a claim for refund with respect to which no
further legal or administrative remedies are being sought; or (iv) any other
written agreement relating to an Adjustment between any Governmental Authority
and any Controlling Party the execution of which is final and prohibits such
Governmental Authority or the Controlling Party from seeking any further legal
or administrative remedies with respect to such Adjustment.
1.18. Governmental Authority shall have the meaning set forth in the definition
of Tax.
1.19. GP shall have the meaning set forth in the first paragraph hereof.
1.20 GP Affiliated Group shall mean (i) the affiliated group, within the meaning
of Section 1504(a) of the Code, consisting of GP and its Subsidiaries, (ii) any
combined, consolidated or unitary group for state, local or foreign Tax purposes
that includes GP or any of its Subsidiaries and (iii) for any taxable period,
any Legal Entity that files Joint Returns for such taxable period.
1.20. Group shall mean the NPDC Group or the GP Group.
1.21 Independent Third Party means a nationally recognized law firm or
nationally recognized accounting firms.
1.22. Interested Party shall mean GP or any other member of the GP Group or NPDC
or any other member of the NPDC Group (including any successor and/or assign of
any of each of the foregoing), as the case may be, to the extent (a) such person
is not the Controlling Party with respect to a Tax Proceeding; and (b) such
person (i) may be liable for, or required to make, any indemnity payment,
reimbursement or other payment pursuant to the provisions of this Agreement, or
required to make a payment of any Tax, with respect to such Tax Proceeding; or
(ii) may be entitled to receive any indemnity payment, reimbursement or other
payment pursuant to the provisions of this Agreement, or be entitled to receive
a Refund, with respect to such Tax Proceeding; provided, however, that in no
event shall a member of either the NPDC Group or the GP Group, as the case may
be, be an Interested Party in a Tax Proceeding in which another member of its
Group is the Controlling Party with respect to the Tax Proceeding. For the
avoidance of doubt, (i) in no event shall GP or a member of the GP Group be an
Interested Party with respect to any Tax Proceeding relating to NPDC or a member
of the NPDC Group with respect to a Post-Distribution Taxable Period and (ii) in
no event shall NPDC or a member of the NPDC Group be an Interested Party with
respect to any Tax Proceeding relating to GP or a member of the GP Group with
respect to a Post-Distribution Taxable Period.
1.23. Interested Party Notice shall have the meaning set forth in Section 9.6(b)
hereof.
1.24. Joint Return shall mean any Tax Return that includes information related
to at least two Legal Entities of which one Legal Entity is a member of the GP
Group and the other Legal Entity is a member of the NPDC Group.
1.25. Legal Entity shall mean a corporation, partnership, limited liability
company or other entity under state or other applicable organizational law.
1.26. Losses shall mean costs, expenses, fees, liabilities, obligations and
losses.
1.27. Non-Income Taxes shall mean all Taxes other than any Tax which is based
upon, measured by, or calculated with respect to (i) net income or profits
(including, but not limited to, any capital gains, gross receipts, value added
or minimum Tax) or (ii) multiple bases (including, but not limited to, corporate
franchise, doing business or occupation Taxes) if one or more of the bases upon
which such Tax may be based, by which it may be measured, or with respect to
which it may be calculated is described in clause (i) hereof. For the avoidance
of doubt, Non-Income Taxes shall include, but not be limited to, business and
occupation, sales, use, ad valorem property, real property gains, real or
personal property, intangibles, transfer, or similar Taxes.
1.28. NPDC shall have the meaning set forth in the first paragraph hereof.
1.29. Post-Distribution Taxable Period shall mean (i) a taxable period that
begins after the Distribution Date and (ii) the portion beginning after the
Distribution Date of any taxable period that includes (but does not end) on the
Distribution Date.
1.30. Pre-Distribution Taxable Period shall mean (i) a taxable period or portion
thereof that ends on or prior to the close of the Distribution Date and (ii) the
portion ending at the close of the Distribution Date of any taxable period that
includes (but does not end) on the Distribution Date.
1.31. Refund shall mean any refund of Taxes, including any reduction in
liability for such Taxes by means of a credit, offset or otherwise.
1.32. Regulations shall mean the Treasury Regulations promulgated under the
Code.
1.33. Separate Return shall mean any Tax Return that is not a Joint Return.
1.34. State, Local or Foreign CNOL shall have the meaning set forth in Section
2.3(b) hereof.
1.35. Subsidiary shall mean, with respect to any Legal Entity, any other Legal
Entity of which at least (i) 50% of the equity and (ii) 50% of the voting
interests are owned, directly or indirectly, by such first Legal Entity.
1.36. Tax shall mean all forms of taxes, fees, imposts, levies or other
assessments whenever created or imposed, and whether of the United States or
elsewhere, and whether imposed by a local, municipal, governmental, state,
foreign, federation or other similar body (a "Governmental Authority"), and,
without limiting the generality of the foregoing, shall include income, gross
receipts, business and occupation, property, sales, use, license, excise,
franchise, capital stock, employment, payroll, unemployment insurance, social
security, stamp, environmental, value added, alternative or added minimum, ad
valorem, trade, recording, withholding, occupation or transfer tax, custom or
duty or other like governmental assessment or charge of any kind whatsoever,
whether computed on a separate, consolidated, unitary, combined or any other
basis, together with any related interest, penalties and additions imposed by
any Governmental Authority.
1.37. Tax Item shall mean any item of income, gain, loss, deduction, credit,
recapture of credit or any other item which increases or decreases Taxes
(including Non-Income Taxes) paid or payable, including an adjustment under Code
Section 481 resulting from a change in accounting method.
1.38. Tax Proceeding shall mean any Tax audit, examination, controversy or
litigation with or against any Governmental Authority.
1.39 Tax Return shall mean any report, return or other information (including
any attached schedules or any amendments to such report, return or other
information) required to be supplied to or filed with a Governmental Authority
with respect to any Tax, including an information return, claim for refund,
amended return, declaration, or estimated Tax return, in connection with the
determination, assessment, collection or administration of any Tax.
1.40. Ultimate Determination has the meaning set forth in Section 9.7(b)(ii)
hereof.
2. Tax Sharing with respect to Pre-Distribution Taxable Periods.
2.1. General. Except as otherwise provided herein, in determining a party's
liability and/or obligation to make, or the right to receive, any indemnity
payment, reimbursement or other payment in respect of any Tax under this
Agreement, any taxable period or portion of a taxable period that includes the
Distribution Date shall be deemed to include and end on the Distribution Date,
and no party shall have any liability and/or obligation to make, or right to
receive any indemnity payment, reimbursement or other payment in respect of any
Tax under this Agreement with respect to any Post-Distribution Taxable Period.
2.2. Federal Income Taxes (other than AMT).
(a) Consolidated Federal Taxable Income. If the GP Affiliated Group has
consolidated federal taxable income for a Pre-Distribution Taxable Period, then
(i) if the NPDC Group has Allocated Taxable Income, NPDC shall pay GP the
federal income Tax on the NPDC Group's Allocated Taxable Income for the taxable
period; and (ii) if the NPDC Group has an Allocated Taxable Loss for the taxable
period, GP shall pay NPDC the amount by which the GP Affiliated Group's federal
income Tax is reduced for the taxable period by reason of the NPDC Group's
Allocated Taxable Loss.
(b) Consolidated Federal Net Operating Loss. If the GP Affiliated Group has a
consolidated net operating loss for federal income tax purposes for a
Pre-Distribution Taxable Period ("Federal CNOL"), then (i) if the GP Group and
the NPDC Group both have Allocated Taxable Losses, the federal income Refund or
other Tax benefit arising from the Federal CNOL shall be shared between the GP
Group and the NPDC Group in proportion to their respective Allocated Taxable
Losses for the taxable period as described in Section 2.2(c) hereof; (ii) if the
NPDC Group has an Allocated Taxable Loss and the GP Group has Allocated Taxable
Income, then GP shall pay NPDC the amount by which the GP Affiliated Group's
federal income Taxes for the taxable period are reduced by reason of the NPDC
Group's Allocated Taxable Loss and the federal income Refund or other Tax
benefit arising from the Federal CNOL shall be allocated to the NPDC Group; and
(iii) if the NPDC Group has Allocated Taxable Income and the GP Group has an
Allocated Taxable Loss, then NPDC shall pay GP the amount by which the GP
Affiliated Group's federal income Taxes for the taxable period are reduced by
reason of the GP Group's Allocated Taxable Loss and the federal income Refund or
other Tax benefit arising from the Federal CNOL shall be allocated to the GP
Group.
(c) If Section 2.2(b)(i) applies (i.e., both the GP Group and the NPDC Group
have Allocated Taxable Losses), then GP shall first carry back the Federal CNOL
to the extent permitted by law, and then carry forward such Federal CNOL to any
Pre-Distribution Taxable Period. Such carryback or carryforward, as the case may
be, shall be treated as applied (i) for each applicable taxable period in
proportion to the respective Allocated Taxable Losses of each Group for the
taxable period of the Federal CNOL and (ii) beginning with the earliest taxable
period permitted by applicable law. To the extent GP obtains a Refund or other
Tax benefit arising from such carryback or carryforward, GP shall compensate the
NPDC Group for the Refund or other Tax benefit received in an amount which is
proportionate to such Group's Allocated Taxable Loss included in the Federal
CNOL so applied with payment made within ten (10) days of GP's receipt of such
Refund or within ten (10) days of GP's filing the Tax Return with respect to
which it claims such other Tax benefit, whichever is earlier. For the avoidance
of doubt, if GP obtains no Refund or other Tax benefit with respect to a Federal
CNOL described in this paragraph, GP shall make no payment to NPDC in respect of
the NPDC Group's Allocated Taxable Loss for the taxable period of the CNOL but
shall allocate any Tax attribute attributable to such Allocated Taxable Loss to
the NPDC Group pursuant to Section 4 hereof.
2.3. Consolidated State, Local and Foreign Taxes. With respect to a Joint Return
for a state, local or foreign jurisdiction:
(a) If the GP Affiliated Group has combined, consolidated or unitary taxable
income in such jurisdiction for a Pre-Distribution Taxable Period, then (i) if
the NPDC Group has Allocated Taxable Income, NPDC shall pay GP the Tax on the
NPDC Group's Allocated Taxable Income for the taxable period; and (ii) if the
NPDC Group has an Allocated Taxable Loss for the taxable period, GP shall pay
NPDC the amount by which the GP Affiliated Group's Tax is reduced for the
taxable period in such jurisdiction by reason of the NPDC Group's Allocated
Taxable Loss.
(b) If the GP Affiliated Group has a consolidated, combined or unitary net
operating loss in a jurisdiction for a Pre-Distribution Taxable Period ("State,
Local or Foreign CNOL"), then (i) if the GP Group and the NPDC Group both have
Allocated Taxable Losses, the Refund or other Tax benefit arising from the
State, Local or Foreign CNOL shall be shared between the GP Group and the NPDC
Group in proportion to their respective Allocated Taxable Losses for the taxable
period as described in Section 3.3(c) hereof; (ii) if the NPDC Group has an
Allocated Taxable Loss and the GP Group has Allocated Taxable Income, then GP
shall pay NPDC the amount by which the GP Affiliated Group's Taxes for the
taxable period in such jurisdiction are reduced by reason of the NPDC Group's
Allocated Taxable Loss and the Refund or other Tax benefit arising from the
State, Local or Foreign CNOL shall be allocated to the NPDC Group; and (iii) if
the NPDC Group has Allocated Taxable Income and the GP Group has an Allocated
Taxable Loss, then NPDC shall pay GP the amount by which the GP Affiliated
Group's Taxes for the taxable period in such jurisdiction are reduced by reason
of the GP Group's Allocated Taxable Loss and the Refund or other Tax benefit
arising from the State, Local or Foreign CNOL shall be allocated to the GP
Group.
(c) If Section 2.3(b)(i) applies (i.e., both the GP Group and the NPDC Group
have Allocated Taxable Losses), then GP shall first carry back the State, Local
or Foreign CNOL to the extent permitted by law, and then carry forward the
State, Local or Foreign CNOL to any Pre-Distribution Taxable Period. Such
carryback or carryforward, as the case may be, shall be treated as applied (i)
for each applicable taxable period in proportion to the respective Allocated
Taxable Losses of each Group for the taxable period of the State, Local or
Foreign CNOL and (ii) beginning with the earliest taxable period permitted by
applicable law. To the extent GP obtains a Refund or other Tax benefit arising
from such carryback or carryforward, GP shall compensate the NPDC Group for the
Refund or other Tax benefit received in an amount which is proportionate to such
Group's Allocated Taxable Loss included in the State, Local or Foreign CNOL so
applied with payment made within ten (10) days of GP's receipt of such Refund or
within ten (10) days of GP's filing the Tax Return with respect to which it
claims such other Tax benefit, whichever is earlier. For the avoidance of doubt,
if GP obtains no Refund or other Tax benefit with respect to a State, Local or
Foreign CNOL described in this paragraph, GP shall make no payment to NPDC in
respect of the NPDC Group's Allocated Taxable Loss for the taxable period of the
CNOL but shall allocate any Tax attribute attributable to such Allocated Taxable
Loss to the NPDC Group pursuant to Section 4 hereof.
2.4 Consolidated Tax Credits.
(a) General. Except as set forth in Sections 2.4(b) and Section 2.5 hereof, Tax
credits will be allocated to each of the NPDC Group and the GP Group
contributing to the credit on a pro rata basis in an amount equal to such
Group's contribution to each consolidated Tax credit determined to be available
to the GP Affiliated Group for each taxable period, except to the extent that
the Code or Regulations require a different allocation. The contribution of the
NPDC Group and the GP Group to each consolidated Tax credit generally will be
determined without regard to the amount of Tax credit that would have been
allowed if a Separate Return had been filed. Any Tax credit allocated to the
NPDC Group or the GP Group under Section 2.4 or 2.5 hereof shall be taken into
account in determining the amount of any payment to be made by the NPDC Group or
the GP Group, as the case may be, under Section 2 or Section 3 hereof.
(b) Foreign Tax Credit. The contribution of a Group to the consolidated foreign
Tax credit with respect to income in each of the foreign Tax credit separate
limitation categories (as set forth in Section 904(d) of the Code and the
Regulations thereunder, and hereinafter referred to as "baskets") for a taxable
year will be determined separately, in the following manner, except to the
extent that the Code or Regulations require a different allocation. If the GP
Affiliated Group has an excess foreign Tax credit limitation for a particular
basket, a Group that incurs foreign income Taxes with respect to that basket
will be allocated a share of the GP Affiliated Group's foreign Tax credit for
that basket equal to its contribution to the foreign Taxes taken as a credit for
the year without regard to the proportion of the Group's contribution to the
income in that basket. If, however, the GP Affiliated Group has an excess
foreign Tax credit for a particular basket (i.e., not all foreign income Taxes
for that basket are allowed as a consolidated foreign Tax credit in that taxable
year or the immediately preceding two taxable years), the amount of the GP
Affiliated Group's foreign Tax credit with respect to that basket to be
allocated to a Group shall be limited to the proportion that such Group's
contribution to foreign income Taxes available for credit with respect to that
basket bears to both Groups' contributions to foreign income Taxes available for
credit for that basket, multiplied by the foreign Tax credit actually allowed
for that basket.
2.5 Alternative Minimum Tax.
(a) If the GP Affiliated Group has a consolidated federal alternative minimum
tax ("AMT") liability for a Pre-Distribution Taxable Period, then (i) if the
NPDC Group has Allocated Taxable Income for AMT purposes ("AMTI"), NPDC shall
pay GP the federal AMT on the NPDC Group's AMTI for the taxable period; and (ii)
if the NPDC Group has an Allocated Taxable Loss for AMT purposes ("AMTL") for
the taxable period, GP shall pay NPDC the amount by which the GP Affiliated
Group's federal AMT is reduced for the taxable period by reason of the NPDC
Group's AMTL.
(b) If the GP Affiliated Group has a net operating loss for consolidated federal
AMT purposes ("AMT NOL") for a Pre-Distribution Taxable Period, then (i) if the
GP Group and the NPDC Group both have AMTLs, the federal AMT refund or other Tax
benefit arising from the AMT NOL shall be shared between the GP Group and the
NPDC Group in proportion to their respective AMTLs for the taxable period; (ii)
if the NPDC Group has an AMTL and the GP Group has AMTI, then GP shall pay NPDC
the amount, if any, by which the GP Affiliated Group's federal AMT for the
taxable period is reduced by reason of the NPDC Group's AMTL and the federal AMT
refund or other Tax benefit arising from the AMT NOL shall be allocated to the
NPDC Group; and (iii) if the NPDC Group has AMTI and the GP Group has an AMTL,
then NPDC shall pay GP the amount, if any, by which the GP Affiliated Group's
consolidated federal AMT for the taxable period is reduced by reason of the GP
Group's AMTL and the federal AMT refund or other Tax benefit arising from the
AMT NOL shall be allocated to the GP Group.
(c) Any Tax benefit arising from the utilization of a consolidated federal AMT
credit by the GP Affiliated Group will be allocated to the Group that paid (or
was responsible under this Agreement for) the AMT that generated such AMT
credit. The AMT credit will be treated as used on a "FIFO" basis.
(d) The principles set forth in Sections 2.5(a) through 2.5(c) shall apply,
mutatis mutandis, with respect to any Joint Return for a state, local or foreign
jurisdiction that imposes an AMT, unless otherwise agreed with or mandated by a
specific jurisdiction.
2.6 Non-Income Taxes. In the case of any Joint Return for a Pre-Distribution
Taxable Period with respect to any Non-Income Tax, each Group included in the
Joint Return shall be liable for the Non-Income Tax attributable to the NPDC
Business or the GP Business, as the case may be. In the event that the portion
of the Non-Income Tax attributable to a particular Group's Business cannot be
determined for a Non-Income Tax Return that is a Joint Return, then the Tax
shall be allocated to the GP Group.
2.7 Certain Tax Items for NPDC Group's Account. Any Tax Item resulting from,
arising out of, relating to, in the nature of or caused by any asset or other
interest related to the NPDC Business shall be for the account of the NPDC Group
as provided hereunder.
2.8 Certain Items for GP Group's Account. Any Tax Item resulting from, arising
out of, relating to, in the nature of or caused by any asset or other interest
related to the GP Business shall be for the account of the GP Group as provided
hereunder. Without limitation, and for the avoidance of any doubt, except as
provided in the Distribution Agreement, Tax Items arising out of or relating to
all income, gains and DITs that are required to be taken into account by the GP
Affiliated Group as a result of or in connection with the Corporate
Restructuring or the Distribution shall be for the account of the GP Group.
3. Tax Sharing Payments.
3.1. Agent for Payment. Any Tax sharing payment, Refund, indemnity,
reimbursement or other payment required to be made to or by the GP Group
pursuant to this Agreement shall be made to or by GP as agent for the GP Group.
Any tax sharing payment, Refund, indemnity, reimbursement or other payment
required to be made to or by the NPDC Group pursuant to this Agreement shall be
paid to or by NPDC as agent for the NPDC Group.
3.2. Joint and Several Liability. Every member of the NPDC Group shall be
jointly and severally liable for all obligations of any member of the NPDC Group
arising under this Agreement; and every member of the GP Group shall be jointly
and severally liable for all obligations of any member of the GP Group arising
under this Agreement.
3.3. Time of Payment. Payments required pursuant to Sections 2 hereof shall be
made on an estimated basis no later than the fifth day after the date an
estimated Tax payment is due (including extensions). A true-up payment shall be
made no later than sixty (60) days after the date that the Tax Return for the
taxable period is due (including extensions).
4. Apportionment of Tax Attributes. GP shall provide to the NPDC Group (a) no
later than forty five (45) days prior to the due date (including extensions) for
filing the federal income Tax Return of the GP Affiliated Group for the taxable
period that includes the Distribution Date, a schedule setting forth an estimate
of all federal, state, or local consolidated or combined losses, credits and
other Tax attributes allocable to the NPDC Group for Post-Distribution Taxable
Periods, and (b) no later than ninety (90) days after the due date (including
extensions) for filing the relevant federal income Tax Return, a final copy of
such schedule. If, within sixty (60) days of receiving the final schedule
described in the preceding sentence, NPDC provides written notice to GP that it
disagrees with any item reflected on such schedule, the parties shall, in good
faith, confer with each other to resolve any such disagreement. If, within
thirty (30) days of the receipt by GP of the notice from NPDC described in the
preceding sentence, any disputed items remain unresolved, the parties shall
retain an Independent Third Party to resolve such dispute in a manner consistent
with the principles of Section 9.7. The allocation of Tax attributes set forth
in such final schedule shall be binding on the NPDC Group and the GP Group and,
except as otherwise required pursuant to a Final Determination, neither GP nor
NPDC (or any other member of the GP Group or the NPDC Group) shall take a
position on any Return for a Post-Distribution Taxable Period that is
inconsistent with the information contained in such schedule. NPDC shall prepare
or cause to be prepared and file or cause to be filed all income Tax Returns for
Post-Distribution Taxable Periods so as to take into account, to the extent
permitted by applicable law, any Tax attribute apportioned to NPDC or any member
of the NPDC Group hereunder.
5. Carrybacks. Except to the extent otherwise consented to by GP or prohibited
by applicable law, the NPDC Group shall relinquish, waive or otherwise forego
all carrybacks of a Tax attribute (including, without limitation, a net
operating loss, a net capital loss or a Tax credit) by a member of the NPDC
Group from a Post-Distribution Taxable Period to a Pre-Distribution Taxable
Period.
6. Adjustments.
6.1. General. In the event of any redetermination of the consolidated federal
income Tax liability of the GP Affiliated Group for any taxable period (or of a
Tax liability with respect to any Joint Return for any taxable period) as the
result of a Tax Proceeding by the IRS (or the relevant state, local or foreign
Governmental Authority), a claim for Refund or otherwise, the GP Group's and the
NPDC Group's respective shares of the Taxes of the GP Affiliated Group pursuant
to this Agreement shall be recomputed for such taxable period and any prior and
subsequent taxable periods to take into account such redetermination, and
payments due pursuant to Sections 2 hereof shall be appropriately adjusted.
6.2. Special Rules for Combined Returns. In the event of a redetermination of an
income Tax liability reflected on a Combined Return that is a Joint Return for
any taxable period that results from an adjustment to one or more apportionment
factors (whether arising from an adjustment to the factors of a single Group or
more than one Group), the liability of all Groups shall be recalculated using
the revised apportionment factors (property, payroll, sales), calculated on a
consolidated basis, and Tax sharing payments with respect to such Combined
Return shall be appropriately adjusted.
6.3. Payment. Any additional Tax owed by any party to a Governmental Authority
pursuant to a Final Determination shall be paid directly to and within the time
prescribed by the Governmental Authority. Any payment by GP to NPDC or by NPDC
to GP, as the case may be, required as a result of any adjustment made to any
tax sharing payment under this Article 6 shall be paid within thirty (30) days
after receipt of a written notice from the party that is entitled to receive a
payment hereunder; such notice to be issued as soon as practicable after payment
to a Governmental Authority was made in accordance with the preceding sentence.
Notwithstanding the foregoing, any party receiving a Refund to which another
party is entitled pursuant to this Agreement shall pay the amount to which such
other party is entitled (plus any interest thereon received with respect thereto
from the applicable Governmental Authority) within ten (10) days after the
receipt of the Refund. Any indemnity payment, reimbursement or other payment
made to a party pursuant to this Agreement shall, unless otherwise requested by
such party, be made by wire transfer of immediately available funds to such bank
and/or other account of such party as it shall direct.
6.4. Characterization of Payment. For all Tax purposes, except as otherwise
mandated by applicable law, the parties hereto agree to treat, and to cause
their respective affiliates to treat (a) any payments that have arisen or will
arise under this Agreement for a taxable period beginning on or before and
ending after the Distribution Date and will not have become fixed and
ascertainable until after the Distribution as occurring immediately before the
Distribution; (b) any payment to a party required by this Agreement as either a
contribution by GP to NPDC or a distribution by NPDC to GP, as the case may be,
occurring immediately prior to the Distribution; (c) any payment of interest (or
non-federal income Taxes) by the IRS (or the relevant state, local or foreign
Governmental Authority) as taxable to the party entitled under this Agreement to
retain such payment; and (d) any payment of interest (or non-federal income
Taxes) to the IRS (or the relevant state, local or foreign Governmental
Authority) as deductible to the party required under this Agreement to make such
payment; provided, however, that in the event it is determined as a result of a
Final Determination that any such treatment described in this Section is not
permissible, the payment in question shall be adjusted to place the parties in
the same after-tax position they would have enjoyed absent such Final
Determination.
7. Interest on Unpaid Amounts. In the event that any party fails to pay any
amount owed to another party pursuant to this Agreement on the date when due,
interest shall accrue on any unpaid amount, from the due date until the date
when such amounts are fully paid, at the Designated Rate in effect during that
time.
8. Indemnification.
8.1. By the GP Group. From and after the Effective Date, a member of the GP
Group shall indemnify and hold harmless any NPDC Indemnitee from and against (a)
any Taxes with respect to a Pre-Distribution Taxable Period which such member of
the GP Group is required to pay to a Governmental Authority or in respect of
which the GP Group is required to make a payment to NPDC; and (b) any Losses
incurred by any NPDC Indemnitee by reason of a breach by any member of the GP
Group of its obligations or covenants hereunder. Any indemnity payment required
to be made pursuant to this section shall be net of any amount which the GP
Group is entitled to receive from the NPDC Group pursuant to this Agreement.
8.2. By the NPDC Group. From and after the Effective Date, a member of the NPDC
Group shall indemnify and hold harmless each GP Indemnitee from and against (a)
any Taxes with respect to a Pre-Distribution Taxable Period which such member of
the NPDC Group is required to pay to a Governmental Authority or in respect of
which the NPDC Group is required to make a payment to the GP Group; and (b) any
Losses incurred by any GP Indemnitee by reason of a breach by any member of the
NPDC Group of its obligations or covenants hereunder. Any indemnity payment
required to be made pursuant to this section shall be net of any amount which
the NPDC Group is entitled to receive from the GP Group pursuant to this
Agreement.
9. Tax Proceedings.
9.1 Control of Tax Proceedings. The Controlling Party of any Tax Proceeding
shall control all aspects of such Tax Proceeding, including, but not limited to,
executing waivers requested by a Governmental Authority extending the relevant
statute of limitations pursuant to which a Tax Proceeding may be commenced
and/or concluded.
9.2 Notification. The Controlling Party shall notify all Interested Parties
within ten (10) days of (a) the commencement of, or intention to commence, any
Tax Proceeding pursuant to which such Interested Parties may be required to make
or entitled to receive an indemnity payment, reimbursement or other payment
under this Agreement, or required to make a payment of any Tax or be entitled to
receive a Refund; and (b) as required and specified in Section 9.6(a) hereof,
any Final Determination made with respect to any Tax Proceeding pursuant to
which such Interested Parties may be required to make or entitled to receive any
indemnity payment, reimbursement or other payment under this Agreement, or
required to make a payment of any Tax or be entitled to receive a Refund. The
failure of a Controlling Party to timely notify any Interested Party as
specified in the preceding sentence shall not relieve any such Interested Party
of any liability and/or obligation which it may have to the Controlling Party
under this Agreement except to the extent that the Interested Party was
prejudiced by such failure, and in no event shall such failure relieve the
Interested Party from any other liability or obligation which it may have to
such Controlling Party.
9.3 Settlement Rights. The Controlling Party shall have the sole right to
contest, litigate, compromise and settle any Adjustment that is proposed or made
in a Tax Proceeding without obtaining the prior consent of any Interested Party,
except to the extent that (a) the Controlling Party and the Interested Party or
Parties have agreed in writing to assign or transfer control of a Tax Proceeding
to a party other than the Controlling Party; and (b) such assignment or transfer
of control of a Tax Proceeding is not prohibited by applicable law; provided,
however, that unless waived by the parties in writing, the Controlling Party
shall, in connection with any proposed or assessed Adjustment in a Tax
Proceeding for which an Interested Party may be required to make or entitled to
receive an indemnity payment, reimbursement or other payment under this
Agreement, or required to make a payment of any Tax or be entitled to receive a
Refund (i) keep all such Interested Parties informed in a timely manner of all
actions taken or proposed to be taken by the Controlling Party; and (ii) provide
all such Interested Parties with copies of any correspondence or filings
submitted to any Governmental Authority or judicial authority, in each case in
connection with any contest, litigation, compromise or settlement relating to
any such Adjustment in a Tax Proceeding. The failure of a Controlling Party to
take any action as specified in the preceding sentence with respect to an
Interested Party shall not relieve any such Interested Party of any liability
and/or obligation which it may have to the Controlling Party under this
Agreement except to the extent that the Interested Party was prejudiced by such
failure, and in no event shall such failure relieve the Interested Party from
any other liability or obligation which it may have to such Controlling Party.
9.4 Conduct of Tax Proceedings. Promptly after the Controlling Party provides
the notification described in Section 9.2 hereof, the Controlling Party shall
arrange for a meeting or conference call with the Interested Parties to plan for
the management of a Tax Proceeding. The Controlling Party and the Interested
Party shall in good faith provide such information to each other as may be
necessary or useful with respect to a Tax Proceeding involving any federal,
state or local Tax, in a timely manner and consistent with the Controlling
Party's request and the provisions of Section 9 hereof. The Controlling Party
shall not unreasonably reject any suggestions made by an Interested Party with
respect to any such Tax Proceeding and shall act in good faith as if it were the
only party in interest. The costs of any Tax Proceeding shall be borne in
accordance with Section 15 hereof; provided, however, that an Interested Party
shall bear (x) any costs related to such Interested Party's attendance at any
meeting with a Governmental Authority or hearing or proceeding before any
judicial authority pursuant to Section 9.5 hereof, and (y) the costs of any
legal or other representatives retained by such Interested Party in connection
with any Tax Proceeding that is subject to the provisions of this Agreement.
9.5 Tax Proceeding Participation. Unless waived by the parties in writing, the
Controlling Party shall provide an Interested Party with written notice
reasonably in advance of, and such Interested Party shall have the right to
attend, any meetings with Governmental Authorities or before any administrative
or judicial authorities in connection with a Tax Proceeding arising from any
proposed or assessed Adjustment pursuant to which such Interested Party may be
required to make or entitled to receive an indemnity payment, reimbursement or
other payment under this Agreement, or required to make a payment of any Tax or
be entitled to receive a refund of any Tax. In addition, unless waived by the
parties in writing, the Controlling Party shall provide each such Interested
Party with draft copies of any correspondence or filings to be submitted to any
Governmental Authority or administrative or judicial authority with respect to
such Adjustment for such Interested Party's review and comment. The Controlling
Party shall provide such draft copies reasonably in advance of the date that
they are to be submitted to the Governmental Authority or judicial authority and
the Interested Party shall provide its comments, if any, with respect thereto
within a reasonable time before such submission. The failure of a Controlling
Party to provide any notice, correspondence or filing as specified in this
Section 9.5 to an Interested Party shall not relieve any such Interested Party
of any liability and/or obligation which it may have to the Controlling Party
under this Agreement except to the extent that the Interested Party was
prejudiced by such failure, and in no event shall such failure relieve the
Interested Party from any other liability or obligation which it may have to
such Controlling Party.
9.6 Tax Proceeding.
(a) Notice by Controlling Party. The Controlling Party shall promptly provide
written notice, sent postage prepaid by United States mail, certified, return
receipt requested, to all Interested Parties in a Tax Proceeding (i) that a
Final Determination has been made with respect to a Tax Proceeding conducted by
any federal, state, local or foreign Governmental Authority; and (ii)
enumerating the amount of the Interested Party's share of each Adjustment
reflected in such Final Determination of the Tax Proceeding for which such
Interested Party may be required to make or entitled to receive an indemnity
payment, reimbursement or other payment under this Agreement, or required to
make a payment of any Tax or be entitled to receive a Refund.
(b) Notice by Interested Party. Within ninety (90) days after an Interested
Party receives the notice described in Section 9.6(a) hereof from the
Controlling Party, such Interested Party shall execute a written statement
giving notice to the Controlling Party (i) that the Interested Party agrees with
its share of each Adjustment enumerated in the notice described in Section
9.6(a) hereof except with respect to those Adjustments (and/or its share
thereof) that the Interested Party, in good faith, disagrees with and as to
which it has specifically identified the Adjustment(s) (or its share(s)
thereof), including the amount related to each such Adjustment or share, in a
written statement to the Controlling Party (each such disagreed Adjustment
(and/or share thereof) hereinafter is referred to as a "Disputed Adjustment");
and (ii) that the Interested Party waives its right to a determination by an
Independent Third Party pursuant to the provisions of Section 9.7 hereof with
respect to all Adjustments to which it agrees (hereinafter referred to as the
"Interested Party Notice"). The failure of an Interested Party to provide the
notice described in this Section 9.6(b) to the Controlling Party within the
ninety (90) day period specified shall be deemed to indicate that such
Interested Party agrees with its share of all the Adjustments identified in the
notice described in Section 9.6(a) hereof and that such Interested Party waives
its right to a determination by an Independent Third Party with respect to all
the Adjustments (and its share thereof) pursuant to Section 9.7 hereof.
(c) Good Faith Resolution. During the ninety (90) day period immediately
following the Controlling Party's receipt of the Interested Party Notice
described in Section 9.6(b) above, the Controlling Party and the Interested
Party shall, in good faith, confer with each other to resolve any disagreement
over each Disputed Adjustment specifically identified in the Interested Party
Notice. At the end of the ninety (90) day period, unless otherwise extended in
writing by mutual consent of the parties, the Interested Party shall be deemed
to agree with all Disputed Adjustments that were specifically enumerated in the
Interested Party Notice and to waive its right to a determination by an
Independent Third Party pursuant to Section 9.7 hereof with respect to all such
Disputed Adjustments unless, and to the extent, that at any time during such
ninety (90) day (or extended) period, either the Controlling Party or the
Interested Party has given the other party written notice that it is seeking or
intends to seek a determination by an Independent Third Party pursuant to
Section 9.7 hereof regarding any such Disputed Adjustment.
9.7 Dispute Resolution.
(a) Selection of Independent Third Party. In the event that either a Controlling
Party or an Interested Party has given the other party written notice as
required in Section 9.6(c) hereof that it is seeking a determination by an
Independent Third Party pursuant to this Section 9.7 with respect to any
Disputed Adjustment identified in an Interested Party Notice, then the parties
shall, within ten (10) days after a party has received such notice, jointly
select an Independent Third Party to make such determination. In the event that
the parties cannot jointly agree on an Independent Third Party to make such
determination within such ten (10) day period, then the Controlling Party and
the Interested Party shall each immediately select an Independent Third Party
and the Independent Third Parties so selected by the parties shall jointly
select, within ten (10) days of their selection, another Independent Third Party
to make such determination.
(b) Procedure for Independent Third Party. In making its determination as to the
propriety of any Disputed Adjustment, the Independent Third Party selected
pursuant to section 9.7(a) above shall make its determination according to the
following procedure:
(i) The Independent Third Party shall first analyze each Disputed Adjustment for
which a determination is sought pursuant to this Section 9.7 on a stand-alone
basis to determine whether the actual outcome reached with respect to such
Disputed Adjustment as reflected in the Final Determination of the Tax
Proceeding was fair and appropriate taking into account the following exclusive
criteria: (A) the facts relating to such Adjustment; (B) the applicable law, if
any, with respect to such Adjustment; (C) the position of the applicable
Governmental Authority with respect to the compromise, settlement or litigation
of such Adjustment; (D) the strength of the factual and legal arguments made by
the Controlling Party in reaching the outcome with respect to such Adjustment as
reflected in the Final Determination of the Tax Proceeding; and (E) the strength
of the factual and legal arguments being made by the Interested Party for the
alternative outcome being sought by such Interested Party (including the
availability of facts, information and documentation to support such alternative
outcome.) Based on this analysis, the Independent Third Party shall determine
what is the fair and appropriate outcome with respect to each such Disputed
Adjustment.
(ii) The Independent Third Party shall then determine what is the fair and
appropriate outcome (hereinafter referred to as the "Ultimate Determination") to
the Interested Party with respect to each such Disputed Adjustment in the
context of the entire Tax Proceeding as it relates to the Interested Party. In
making this determination, the Independent Third Party shall consider the
Disputed Adjustment as if it were raised in an independent audit of the
Interested Party by the appropriate Governmental Authority and the Independent
Third Party shall take into account and give appropriate weight in its sole
discretion to the following exclusive criteria: (A) the strength of the legal
and factual support for other potential, non-frivolous Adjustments with respect
to matters that were actually raised and contested by the applicable
Governmental Authority in the Tax Proceeding for which the Interested Party
could have been liable under this Agreement but which were eliminated or reduced
as a result of the Controlling Party agreeing to the Disputed Adjustment as
reflected in the Final Determination of the Tax Proceeding; (B) the effect of
the actual outcome reached with respect to the Disputed Adjustment on other
Taxable periods and on other positions taken or proposed to be taken in Returns
filed or proposed to be filed by the Interested Party; (C) the realistic
possibility of avoiding examination of potential, non-frivolous issues for which
the Interested Party could be liable under this Agreement and that were
contemporaneously identified by the party or parties during the course of the
Tax Proceeding but which had not been raised and contested by the applicable
Governmental Authority in the Tax Proceeding; and (D) the benefits to the
Interested Party in reaching a Final Determination, and the strategy and
rationale with respect to the Interested Party's Disputed Adjustment that the
Controlling Party had for agreeing to such Disputed Adjustment in reaching the
Final Determination, in each case that were contemporaneously identified by the
party or parties during the course of the Tax Proceeding.
(c) Determination or Notice by Independent Third Party. Any determination made
or notice given by an Independent Third Party pursuant to this Section 9.7 shall
be (i) in writing; (ii) made within sixty (60) days following the selection of
the Independent Third Party as set forth in Section 9.7(a) of this Agreement
unless such period is otherwise extended by mutual consent of the parties; and
(iii) final and binding upon the parties. The costs of any Independent Third
Party retained pursuant to this Section 9.7 shall be shared equally by the
parties. The Controlling Party and the Interested Party shall promptly provide
the Independent Third Party, jointly selected pursuant to Section 9.7(a) hereof,
with such information or documentation as may be appropriate or necessary in
order to enable such Independent Third Party to make the determination requested
of it within the specified time.
9.8 Payment. Payments required to be made following a Tax Proceeding or Final
Determination shall be made in accordance with the provisions of Section 6.3 of
this Agreement.
10. Tax Returns.
10.1. Tax Returns for Pre-Distribution Taxable Periods. GP, as agent for the GP
Affiliated Group, shall prepare and file all consolidated federal income Tax
Returns and Combined Returns that are Joint Returns for each Pre-Distribution
Taxable Period and shall make any election or application or take any action in
connection with any such Tax Return on behalf of the GP Affiliated Group or the
group filing a Joint Return consistent with the terms of this Agreement.
10.2. Refund Claims. If the NPDC Group or the GP Group desires to file a claim
for a Refund with respect to consolidated federal income Tax Return or Combined
Returns that are Joint Returns for a Pre-Distribution Taxable period, each shall
prepare its own claim for Refund and a statement specifying the date on which
the statute of limitations for filing the Refund claim will expire. GP will file
the Refund claim as soon as practicable after all such Refund claims with
respect to a particular Pre-Distribution Taxable Period have been prepared but
in no event later than forty-five (45) days after the first such Refund claim is
prepared. GP will take any other appropriate action at the request of NPDC
necessary to secure the Refund.
10.3. Separate Returns. Each Group shall be responsible for preparing and filing
or causing to be prepared and filed each of its Separate Returns, including
exemption certificates, and paying the Tax liability due with respect to such
Separate Returns.
11. Cooperation, Exchange of Information. The parties shall cooperate with one
another in all matters relating to Taxes. The NPDC Group shall, at its sole cost
and expense, provide GP with such cooperation and information as is necessary in
connection with Tax Returns and Tax Proceedings with respect to Pre-Distribution
Taxable Periods. Such cooperation and information by the NPDC Group shall
include (a) making available its respective knowledgeable employees during
normal business hours; (b) providing the information required by the GP
Affiliated Group's customary Tax and accounting practices, including
questionnaires (at the times and in the format requested by GP); (c) providing
complete Tax Return work papers and supporting documentation prepared in a
manner that is consistent with past practice of the GP Affiliated Group; (d)
maintaining such books and records and providing such information as may be
necessary or useful in the filing of Joint Returns and Separate Returns; (e)
retaining any powers of attorney executed on behalf of GP with respect to any
Pre-Distribution Taxable Period in order to facilitate communication with
Governmental Authorities; and (f) executing any documents and taking any actions
which GP may reasonably request in connection with any Pre-Distribution Taxable
Period. With respect to any Tax Return for a Pre-Distribution Taxable Period,
the NPDC Group shall provide the information required hereunder no later than
120 days after the earlier of (i) the last day of such taxable period or (ii)
the Distribution Date.
12. Resolution of Disputes. Any dispute concerning the calculation or basis of a
determination of any payment provided for hereunder shall be resolved by the
Independent Third Party selected under the principles of Section 9.7(a), whose
judgment shall be conclusive and binding upon the parties, in the absence of
mathematical error.
13. Binding Effect; Successors and Assigns. This Agreement shall be binding upon
GP and NPDC. This Agreement shall inure to the benefit of, and be binding upon,
any successors or assigns of the parties hereto. GP, NPDC, and each other party
hereto may assign their right to receive payments under this Agreement but may
not assign or delegate their obligations hereunder.
14. Interpretation. This Agreement is intended to calculate and allocate certain
federal, state, local and foreign Tax liabilities of the members of the GP
Affiliated Group, the GP Group, and the NPDC Group, and any situation or
circumstance concerning such calculation and allocation that is not specifically
contemplated hereby or provided for herein shall be dealt with in a manner
consistent with the underlying principles of calculation and allocation in this
Agreement.
15. Legal and Accounting Fees. Except as otherwise provided herein, any fees or
expenses for legal, accounting or other professional services rendered in
connection with the preparation of a Joint Return or the conduct of any Tax
Proceeding, including, without limitation, any Dispute Resolution pursuant to
Section 9.7, shall be borne by the party incurring such fees or expenses.
16. Entire Agreement; Termination; Amendments; Waiver.
16.1. This Agreement embodies the entire understanding among the parties
relating to its subject matter. Any and all prior correspondence, conversations
and memoranda are merged herein and shall be without effect hereon. No promises,
covenants or representations of any kind, other than those expressly stated
herein, have been made to induce either party to enter into this Agreement.
16.2. This Agreement shall apply as of the Effective Date and shall remain in
effect unless the parties agree in writing to terminate this Agreement.
Notwithstanding any such termination, this Agreement shall continue in effect
with respect to any payment or indemnification due for all taxable periods prior
to termination during which this Agreement was in effect.
16.3. This Agreement, including this provision against oral modification, shall
not be amended, supplemented, modified or terminated except by a writing duly
signed by each of the parties hereto, and no waiver of any provisions of this
Agreement shall be effective unless in a writing duly signed by the party sought
to be bound.
17. Prior Agreements. As of the Effective Date, this Agreement supersedes and
terminates all prior agreements as to the allocation of Tax liabilities between
the parties.
18. Code References. Any references to the Code or Regulations shall be deemed
to refer to the relevant provisions of any successor statute or regulation and
shall refer to such provisions as in effect from time to time.
19. Notices. All notices or other communications under this Agreement shall be
in writing (including telecopy communication) and shall be mailed, telecopied or
delivered:
If to GP, at: GP Strategies Corporation
777 Westchester Avenue
White Plains, NY 10604
Attention: Andrea Kantor
Fax: (914) 249-9745
If to NPDC, at: National Patent Development Corporation
777 Westchester Avenue
White Plains, NY 10604
Attention: Lydia DeSantis
Fax: (914) 249-9745
Any party may, by written notice to the other party, change the address to which
such notices are to be given. All such notices and communications shall be
effective when received.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
21. Severability. Any provision or the application of such provision hereof
which is invalid, illegal or unenforceable in any jurisdiction will be
ineffective only to the extent of such invalidity or unenforceability, without
affecting in any way the remaining provisions hereof. The parties will negotiate
in good faith to replace any provision so held to be invalid or unenforceable so
as to implement most effectively the transactions contemplated by such
provisions in accordance with the parties' original intent.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
by its respective duly authorized officer as of the date first set forth above.
GP Strategies Corporation
By: ------------------------------------
Name:
Title:
National Patent Development Corporation
By: ------------------------------------
Name:
Title: