Exhibit 10.11
TAX SHARING AGREEMENT
BETWEEN
AIRBORNE, INC.
AND
ABX AIR, INC.
__________________ ___, 2003
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
ARTICLE II
RESPONSIBILITY FOR TAXES; PREPARATION AND FILING OF TAX RETURNS
Section 2.1 Responsibility for Taxes .............................. 4
Section 2.2 Preparation of Tax Returns ............................ 4
ARTICLE III
TAX CONTESTS
Section 3.1 Notice ................................................ 5
Section 3.2 Control of Tax Contests 5
ARTICLE IV
REFUNDS; TAX BENEFITS; TAX SHARING AGREEMENTS
Section 4.1 Refunds ............................................... 6
Section 4.2 Tax Sharing Agreements ................................ 6
ARTICLE V
COOPERATION AND EXCHANGE OF INFORMATION
Section 5.1 Cooperation ........................................... 6
Section 5.2 Retention of Records .................................. 7
ARTICLE VI
PAYMENTS
Section 6.1 Method of Payment ..................................... 7
Section 6.2 Interest .............................................. 7
Section 6.3 Characterization of Payments .......................... 7
Section 6.4 Time of Indemnification Payment ....................... 8
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 Entire Agreement ...................................... 8
Section 7.2 Dispute Resolution .................................... 8
Section 7.3 Governing Law ......................................... 8
Section 7.4 Notices ............................................... 8
Section 7.5 Agent ................................................. 8
Section 7.6 Amendment ............................................. 9
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TABLE OF CONTENTS
(continued)
Page
Section 7.7 Counterparts .................................... 9
Section 7.8 Binding Effect; Assignment ...................... 9
Section 7.9 Severability .................................... 9
Section 7.10 Waiver of Breach ................................ 9
Section 7.11 Amendment and Execution ......................... 9
Section 7.12 Authority ....................................... 10
Section 7.13 Descriptive Headings ............................ 10
Section 7.14 Additional Assurances ........................... 10
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TAX SHARING AGREEMENT
This Tax Sharing Agreement (this "Agreement") is entered into on
_______________ ____, 2003 by and among Airborne, Inc., a Delaware corporation
("Airborne"), and ABX Air, Inc., a Delaware corporation and wholly-owned
subsidiary of Airborne ("ABX"). Airborne and ABX are sometimes referred to
herein individually as a "party" or collectively as the "parties."
RECITALS
WHEREAS, Airborne and DHL Worldwide Express B.V., a company organized and
existing under the laws of the Netherlands ("DHL"), have entered into an
Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which
Atlantis Acquisition Corporation, a Delaware corporation and wholly-owned
subsidiary of DHL, will merge with and into Airborne (the "Merger"), provided
that all of the conditions precedent to the Merger set forth in the Merger
Agreement have been satisfied;
WHEREAS, subject to the terms and conditions set forth in the Merger
Agreement, prior to the Effective Time, Airborne shall effect the transactions
contemplated by the Separation Agreement (as defined herein; capitalized terms
used but not defined herein are used as therein defined) and certain other
agreements identified therein (such transactions, the "Separation"), in each
case pursuant to and in accordance with the terms of such agreements.
WHEREAS, as of the Effective Time (as defined below), ABX will cease to be
a member of the Airborne Consolidated Group (as defined below); and
WHEREAS, in connection with the transactions contemplated under the
Separation Agreement, the parties hereto wish to provide for the payment of
Taxes (as defined herein) and entitlement to Refunds thereof, allocate
responsibility and provide for cooperation in connection with the filing of
returns in respect of Taxes, and provide for certain other matters relating to
Taxes.
NOW, THEREFORE, in consideration of the agreements herein contained and
intending to be legally bound hereby, Airborne and ABX hereby agree as follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement the following capitalized terms are
defined in this Article I.
Section 1.1 "ABX" has the meaning set forth in the preamble and shall
include for all purposes of this Agreement its Subsidiaries.
Section 1.2 "Airborne" has the meaning set forth in the preamble.
Section 1.3 "Airborne Consolidated Group" means (i) Airborne and those
members of the affiliated group (as defined in Section 1504 of the Code) of
which Airborne is the parent and which file a consolidated federal Tax Return
with Airborne and (ii) any
corporations which filed consolidated or combined state or local returns with
Airborne. Notwithstanding the foregoing, ABX shall cease to be a member of the
Airborne Consolidated Group after the Effective Time, and shall not be a member
of the Airborne Consolidated Group for any Post-Effective Taxable Period.
Section 1.4 "Code" means the Internal Revenue Code of 1986, as amended.
Section 1.5 "Effective Date" has the meaning given to such term in the
Merger Agreement.
Section 1.6 "Effective Time" has the meaning given to such term in the
Merger Agreement.
Section 1.7 "Final Determination" means the final resolution of
liability for any Tax, which resolution may be for a specific issue or
adjustment or for a taxable period: (i) by Internal Revenue Service Form 870 or
870-AD (or any successor forms thereto), on the date of acceptance by or on
behalf of the taxpayer, or by a comparable form under the laws of a state or
local Taxing Jurisdiction, except that a Form 870 or 870-AD or comparable form
shall not constitute a Final Determination to the extent that it reserves
(whether by its terms or by operation of law) the right of the taxpayer to file
a claim for Refund or the right of the Taxing Jurisdiction to assert a further
deficiency in respect of such issue or adjustment or for such taxable period (as
the case may be); (ii) by a decision, judgment, decree, or other order by a
court of competent jurisdiction, which has become final and unappealable; (iii)
by a closing agreement or accepted offer in compromise under Sections 7121 or
7122 of the Code, or a comparable agreement under the laws of a state or local
taxing jurisdiction; (iv) by any 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 jurisdiction
imposing such Tax; or (v) by any other final disposition, including by reason of
the expiration of the applicable statute of limitations or by mutual agreement
of the parties.
Section 1.8 "Indemnified Party" means any party entitled to
indemnification hereunder.
Section 1.9 "Indemnifying Party" means any party obligated to provide
indemnification hereunder.
Section 1.10 "IRS" means the Internal Revenue Service.
Section 1.11 "Merger" has the meaning given that term in the Recitals
hereof.
Section 1.12 "Merger Agreement" has the meaning given that term in the
Recitals hereof.
Section 1.13 "Person" means an individual, a partnership, a corporation,
a limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
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Section 1.14 "Post-Effective Taxable Period" means a taxable period that,
to the extent it relates to ABX and its Subsidiaries, begins after 11:59 p.m. on
the Effective Date.
Section 1.15 "Pre-Effective Taxable Period" means a taxable period that,
to the extent it relates to ABX and its Subsidiaries, ends on or before 11:59
p.m. on the Effective Date.
Section 1.16 "Proceeding" means any audit or other examination, judicial or
administrative proceeding relating to liability for, or Refunds or adjustments
with respect to, Taxes.
Section 1.17 "Refund" means any refund of Taxes, including any reduction in Tax
Liabilities by means of a credit, offset or otherwise.
Section 1.18 "Separation Agreement" means the Master Separation Agreement
by and among Airborne, ABX and Wilmington Air Park, LLC.
Section 1.19 "Straddle Period" means any period that begins before and
ends after the Effective Date.
Section 1.20 "Subsidiary" means with respect to any specified Person, any
corporation, any limited liability company, any partnership or other legal
entity of which such Person or its Subsidiaries owns, directly or indirectly,
more than 50% of the stock or other equity interest entitled to vote on the
election of the members of the board of directors or similar governing body.
Section 1.21 "Tax" (a) means any foreign, federal, state, county or local
income, sales, use, excise, franchise, ad valorem, real and personal property,
transfer, gross receipt, stamp, premium, profits, customs, duties, windfall
profits, capital stock, production, business and occupation, disability,
employment, payroll, severance or withholding taxes, fees, assessments or
charges of any kind whatever imposed by any Taxing Jurisdiction, any interest
and penalties (civil or criminal), additions to tax, payments in lieu of taxes
or additional amounts related thereto or to the nonpayment thereof, and any loss
in connection with the determination, settlement or litigation of any Tax
liability, and (b) shall include any liability in respect of an amount described
in clause (a) of this definition resulting from the application of Treasury
Regulations Section 1.1502-6 or similar provision under state or local law, or
as a transferee.
Section 1.22 "Tax Benefit" has the meaning set forth in Section 2.1(d).
Section 1.23 "Tax Contest" means an audit, review, examination, or any
other administrative or judicial proceeding with the purpose or effect of
redetermining any Taxes (including any administrative or judicial review of any
claim for Refund).
Section 1.24 "Taxing Jurisdiction" means the United States and every
other government or governmental unit, whether domestic or foreign, having
jurisdiction to tax Airborne, ABX or any of their respective affiliates.
Section 1.25 "Tax Liability" means all liabilities for Taxes.
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Section 1.26 "Tax Return" means any return, report, filing, statement,
questionnaire, declaration or other document that has been or is required to be
filed with a Taxing Jurisdiction in respect of Taxes.
ARTICLE II
RESPONSIBILITY FOR TAXES; PREPARATION AND FILING OF TAX RETURNS
Section 2.1 Responsibility for Taxes.
(a) Airborne shall be responsible for and indemnify and hold harmless
ABX and its successors and assigns from (i) any liability for Taxes of ABX with
respect to a Pre-Effective Taxable Period (except for liability for Taxes
resulting from any transaction, other than as contemplated in the Merger
Agreement or any Ancillary Agreement, by ABX that is out of the ordinary course
of business and that occurs after the Effective Time but during a Pre-Effective
Taxable Period), (ii) any Taxes of Airborne or any member of the Airborne
Consolidated Group by reason of ABX being severally liable for such Taxes
pursuant to Treasury Regulations Section 1.1502-6 or any analogous provision of
state or local law, (iii) any Taxes that are imposed on Airborne, any member of
the Airborne Consolidated Group, ABX or any other Person as a result (in whole
or in part) of the transactions contemplated by the Separation Agreement or the
Merger, and (iv) any costs and expenses related to any of the foregoing
(including, without limitation, reasonable legal, accounting, appraisal,
consulting or similar fees and expenses).
(b) ABX shall be responsible and indemnify and hold harmless Airborne
for (i) all Taxes of ABX with respect to a Post-Effective Taxable Period, (ii)
liability for Taxes resulting from any transaction by ABX that is out of the
ordinary course of business, other than as contemplated in the Merger Agreement
or any Ancillary Agreement, and that occurs after the Effective Time but during
a Pre-Effective Taxable Period, and (iii) any costs and expenses related to any
of the foregoing (including, without limitation, reasonable legal, accounting,
appraisal, consulting or similar fees and expenses).
(c) In the case of a Straddle Period, the amount of Taxes payable for
a portion of a period shall be the amount (based on a closing of the books)
which would have been payable if that portion of a period constituted a separate
taxable period beginning on the date such portion of a period began and ending
at the time such portion of a period ended or in such other manner as the
parties may agree.
(d) If any payment under this Section 2.1 is treated under Section
6.3(ii) of this Agreement as deductible by the party making such payment, then
any indemnification obligation provided under this Agreement with respect to
such amount shall be reduced (at the time and in the manner described in Section
2.1(e) below) by the reduction in the indemnitee's liability for Taxes as a
result of such deduction (a "Tax Benefit"). If an indemnitee realizes any such
Tax Benefit and the amount of the indemnification payment has not already been
reduced to reflect such Tax Benefit, then such indemnitee shall pay an amount to
the indemnitor equal to the Tax Benefit realized, provided that in the event an
amount payable to the indemnitee is reduced by the amount of such Tax Benefit
and there is a disallowance of such Tax Benefit by a taxing
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authority such that the indemnitee is not entitled to all or any portion of such
Tax Benefit, then the indemnitor shall pay to the indemnitee the amount of such
Tax Benefit that was disallowed.
(e) A Tax Benefit will be considered to be realized for purposes of
Section 2.1(d) and this Section 2.1(e) on (A) the date on which the Tax Benefit
is received as a Refund of Taxes, or (B) to the extent that the Tax Benefit is
not received as a Refund of Taxes but rather is claimed as an item that reduces
liability for Taxes (on a with and without basis), the due date (including
extensions) of the Tax Return that reflects such change in liability for Taxes.
Notwithstanding anything herein to the contrary, the indemnitee shall determine
whether, for purposes of this Section 2.1, a Tax Benefit is available to the
indemnitee in respect of the relevant indemnifiable claim, provided that such
determination shall be reasonable and shall be made in good faith. The
indemnitor shall have the opportunity to reasonably review and comment on the
indemnitee's calculation of the Tax Benefit realized (including a calculation
pursuant to which it is determined that there is no Tax Benefit available to the
indemnitee), provided that the indemnitee shall make the final determination of
how to report any items on its Tax Return.
Section 2.2 Preparation of Tax Returns.
(a) Airborne shall cause ABX to join, for any Pre-Effective Taxable
Period for which ABX is required to do so, and may cause ABX to join for any
such period or return for which ABX is eligible but not required to do so, in
all federal, state or local consolidated combined or unitary Tax Returns of the
Airborne Consolidated Group. Airborne shall prepare and timely file all such
federal, state or local consolidated combined or unitary Tax Returns and shall
timely pay all Taxes with respect to such Tax Returns.
(b) Airborne shall prepare (or cause to be prepared) and ABX shall
timely file (or cause to be timely filed) any Tax Return relating to ABX for any
Pre-Effective Taxable Period that is required to be filed after the Effective
Date other than those required to be filed by Airborne pursuant to the preceding
clause (a) above. ABX shall not be responsible to pay any Taxes with respect to
such Tax Return. Instead, Airborne shall pay to ABX two (2) business days prior
to the filing of such Tax Return the amount due on such Tax Return, and ABX
shall timely pay such amount to the Governmental Authority imposing the Tax.
(c) ABX shall prepare and file any Tax Return relating to ABX for any
Straddle Period. ABX shall provide a copy of each such Tax Return and any
supporting schedules to Airborne at least thirty (30) days before the date such
Return is to be filed by ABX for Airborne' review and approval. ABX shall pay
all Taxes with respect to such Tax Return, except that Airborne shall pay to ABX
two (2) days prior to the filing of a Tax Return with respect to a Straddle
Period the amount due on such Return that is the responsibility of Airborne
pursuant to Section 2.1.
(d) All returns and schedules prepared pursuant to this Section 2.2
shall be prepared on a basis consistent with those prepared for prior Tax years
unless a different treatment of any item is required by an intervening change in
law. ABX may make any necessary changes in the filing of Tax Returns with
respect to Post-Effective Taxable Periods
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provided that no such change results in any tax detriment to Airborne or other
members of the Airborne Consolidated Group.
(e) ABX shall not file any amended Tax Returns with respect to ABX
for any Pre-Effective Taxable Period of ABX without Airborne's consent.
ARTICLE III
TAX CONTESTS
Section 3.1 Notice. Each of the parties shall provide prompt notice to
the other party of any pending or threatened Tax audit, assessment or proceeding
or other Tax Contest of which it becomes aware related to Taxes for Tax periods
for which it is indemnified by the other party hereunder. Such notice shall
contain factual information (to the extent known) describing any asserted Tax
Liability in reasonable detail and shall be accompanied by copies of any notice
and other documents received from any Taxing Jurisdiction in respect of any such
matters. If an Indemnified Party has knowledge of an asserted Tax Liability with
respect to a matter for which it is to be indemnified hereunder and such party
fails to give the Indemnifying Party prompt notice of such asserted Tax
Liability, then (i) if the Indemnifying Party is precluded from contesting the
asserted Tax Liability in any forum as a result of the failure to give prompt
notice, the Indemnifying Party shall have no obligation to indemnify the
Indemnified Party for any Taxes arising out of such asserted Tax Liability, and
(ii) if the Indemnifying Party is not precluded from contesting the asserted Tax
Liability in any forum, but such failure to give prompt notice results in a
monetary detriment to the Indemnifying Party, then any amount which the
Indemnifying Party is otherwise required to pay the Indemnified Party pursuant
to this Agreement shall be reduced by the amount of such detriment.
Section 3.2 Control of Tax Contests. Each party shall have full
responsibility and discretion in handling, settling or contesting any Tax
Contest involving a Tax for which it is liable pursuant to Section 2.1 of this
Agreement; provided, however, that Airborne shall have full responsibility and
discretion in handling, settling or contesting any Tax Contest with respect to a
consolidated or combined federal or state income Tax Return of the Airborne
Consolidated Group; provided further, that prior to assuming control of any Tax
Contest involving Taxes other than consolidated, combined or unitary income
Taxes of the Airborne Consolidated Group, the Indemnifying Party shall agree, by
providing written notice to the Indemnified Party, to indemnify the Indemnified
Party with respect to any claim in the Tax Contest which would be the subject of
indemnification by the Indemnifying Party under Section 2.1 of this Agreement.
To the extent a Tax Contest for a Pre-Effective Taxable Period would be
reasonably likely to result in a material increase in Taxes of the Indemnified
Party in a Post-Effective Taxable Period, then the Indemnified Party may observe
the conduct of the relevant portions of any such Tax Contest (through attendance
at meetings) and may provide comments to the Indemnifying Party, provided that
the Indemnifying Party shall in no way be obligated to act in accordance with
such comments. If the Indemnifying Party refuses to control, or fails to assume
control on a timely basis, a Tax Contest relating to the defense of any claim
for Taxes which may be the subject of indemnification by the Indemnifying Party,
the Indemnified Party may conduct, settle, or compromise the Tax Contest in the
exercise of its reasonable judgment without affecting the Indemnifying Party's
indemnification obligation under this Agreement. If the Indemnified Party
assumes the defense of any Tax claim as a result of the Indemnifying Party's
refusal or failure to
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ARTICLE IV
REFUNDS; TAX BENEFITS; TAX SHARING AGREEMENTS
Section 4.1 Refunds. Any Refunds of Taxes in respect of periods and
Taxes for which Airborne is responsible pursuant to Section 2.1 shall be for the
account of Airborne and if received by (or credited for the benefit of) ABX or
any affiliate of ABX shall be promptly paid over to Airborne (together with any
interest paid or credited with respect thereto), net of any Tax cost to ABX of
the receipt of such Refund. Any Refunds of Taxes in respect of periods and Taxes
for which ABX is responsible pursuant to Section 2.1 shall be for the account of
ABX and if received by (or credited for the benefit of) Airborne or any
affiliate of Airborne shall be promptly paid over to Airborne (together with any
interest paid or credited with respect thereto), net of any Tax cost to Airborne
of the receipt of such Refund.
Section 4.2 Tax Sharing Agreements. Any tax sharing agreement (other
than this Agreement) between Airborne and ABX or between ABX and any other
Person shall be terminated as of the Effective Date and will have no further
effect for any taxable year (whether the current year, a future year, or a past
year).
ARTICLE V
COOPERATION AND EXCHANGE OF INFORMATION
Section 5.1 Cooperation. Each party, on behalf of itself and each member
of its applicable Group, agrees to provide the other party (or its designee)
with such cooperation or information as Airborne (or its designee) reasonably
shall request in connection with the determination of any other calculations
described in this Agreement, the preparation or filing of any Tax Return or
claim for Refund, or the conduct of any Proceeding. Such cooperation and
information shall include, without limitation, (i) promptly forwarding copies of
appropriate notices and forms or other communications (including, without
limitation, information document requests, revenue agent reports and similar
reports, notices of proposed adjustments and notices of deficiency) received
from or sent to any Taxing Jurisdiction or any other administrative, judicial or
Governmental Authority, (ii) upon reasonable notice, providing copies of all
relevant Tax Returns, together with accompanying schedules and related
workpapers, documents relating to rulings or other determinations by taxing
authorities, and such other records concerning the ownership and tax basis of
property, or other relevant information that such party or any member of such
party's Group may possess, (iii) upon reasonable notice, providing such
additional information and explanations of documents and information provided
under this Agreement (including statements, certificates and schedules delivered
by either party) as shall be reasonably requested by the other party (or its
designee), (iv) upon reasonable notice, providing any document that may be
necessary or reasonably helpful in connection with the filing of a Tax Return, a
claim for a Refund, or in connection with any Proceeding, including such
waivers, consents or powers of attorney as may be necessary for the other party
to exercise its rights under this Agreement, and (v) upon reasonable notice,
using reasonable efforts to obtain any
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documentation from a governmental authority or a third party that may be
necessary or reasonably helpful in connection with any of the foregoing. Upon
reasonable notice, each party shall make its, or shall cause each member of its
applicable Group to make, employees and facilities available on a mutually
convenient basis to provide explanation of any documents or information provided
hereunder. Any information obtained under this Section 5.1 shall be kept
confidential, except as otherwise required by law or as reasonably may be
necessary in connection with the filing of Tax Returns or claims for Refund or
in conducting any Proceeding.
Section 5.2 Retention of Records. Each party agrees to retain all Tax
Returns, related schedules and workpapers, and all material records and other
documents as required under Code Section 6001 and the regulations promulgated
thereunder (and any similar provision of state, local, or foreign Income or
other Tax law) existing on the date hereof or created in respect of (i) any
taxable period that ends on or before or includes the Effective Date or (ii) any
taxable period that may be subject to a claim hereunder, until the later of (x)
the expiration of the statute of limitations (including extensions) for the
taxable periods to which such Tax Returns and other documents relate and (y) the
Final Determination of any payments that may be required in respect of such
taxable periods under this Agreement. From and after the end of the period
described in the preceding sentence of this Section 5.2, if either party wishes
to dispose of any such records and documents, then such party shall provide
written notice thereof to the other party and shall provide the other party the
opportunity to take possession of any such records and documents within ninety
(90) days after such notice is delivered; provided, however, that if such other
party does not, within such ninety (90) day period, confirm its intention to
take possession of such records and documents, the notifying party may destroy
or otherwise dispose of such records and documents.
ARTICLE VI
PAYMENTS
Section 6.1 Method of Payment. All payments required by this Agreement
shall be made by (a) wire transfer to the appropriate bank account as may from
time to time be designated by the parties for such purpose; provided, however,
that, on the date of such wire transfer, notice of the transfer is given to the
recipient thereof in accordance with Section 7.4 hereof, or (b) any other method
agreed to by the parties. All payments due under this Agreement shall be deemed
to be paid when currently available funds are actually received by the payee.
Section 6.2 Interest. Any payment required by this Agreement that is not
made on or before the date required hereunder shall bear interest, from and
after such date through the date of payment, at the underpayment rate as in
effect at such time under Section 6621 of the Code.
Section 6.3 Characterization of Payments. For all tax purposes, the
parties hereto agree to treat, and to cause their respective affiliates to
treat, (i) any payment by Airborne required by this Agreement as a contribution
by Airborne to ABX occurring immediately prior to the Effective Time and (ii)
any payment of interest or non-federal Taxes by or to a Taxing Jurisdiction, as
taxable to or deductible by, as the case may be, the party entitled under this
Agreement to receive such payment or required under this Agreement to make such
payment, in either case except as otherwise mandated by applicable law;
provided, however, that in the event
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it is determined as a result of a Final Determination that any such treatment 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.
Section 6.4 Time of Indemnification Payment. To the extent an
indemnification obligation arises, the Indemnifying Party shall, upon at least
ten (10) days' prior notice, make payment pursuant to such indemnification
obligation no later than five (5) days prior to the date the Indemnified Party
makes a payment of taxes, interest, or penalties with respect to such Tax
Liability, including a proposed adjustment of taxes or an assessment of tax
deficiency asserted or made by any Taxing Jurisdiction that is premised in whole
or part on such Tax Liability, or a payment made in settlement of an asserted
tax deficiency.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 Entire Agreement. This Agreement, the Merger Agreement, the
other Ancillary Agreements and the Exhibits and Schedules to this Agreement
constitute the entire agreement of all the parties and supersede any and all
prior and contemporaneous agreements, memoranda, arrangements and
understandings, both written and oral, between the parties, or either of them,
with respect to the subject matter hereof. No representation, warranty, promise,
inducement or statement of intention has been made by any party which is not
contained in this Agreement, the Merger Agreement, the other Ancillary
Agreements or Schedules or Exhibits to this Agreement and no party shall be
bound by, or be liable for, any alleged representation, promise, inducement or
statement of intention not contained herein or therein. All Exhibits and
Schedules to this Agreement are expressly made a part of, and incorporated by
reference into, this Agreement.
Section 7.2 Dispute Resolution. Any and all controversies, disputes or
claims arising out of, relating to, in connection with or resulting from this
Agreement (or any amendment thereto or any transaction contemplated hereby or
thereby), including as to its existence, interpretation, performance,
non-performance, validity, breach or termination, including any claim based on
contract, tort, statute or constitution and any claim raising questions of law,
whether arising before or after termination of this Agreement, shall be deemed a
Dispute as defined in Section 6.6 of the Separation Agreement and shall be
resolved exclusively by, in accordance with, and subject to the limitations set
forth in Section 6.6 of the Separation Agreement.
Section 7.3 Governing Law and Venue. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of New York.
Section 7.4 Notices. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed to have been
duly given to a party if delivered in person or sent by overnight delivery
(providing proof of delivery) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice) on the date
of delivery, or if by facsimile, upon confirmation of receipt:
If to Airborne: Airborne, Inc.
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Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
With a copy (which shall not
constitute notice) to: DHL
c/o DHL International
Global Coordination Centre
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Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇-▇-▇▇▇-▇▇-▇▇
Telecopier: 011-32-2-713-58-08
If to ABX: ABX Air, Inc.
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Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
With a copy (which shall not
constitute notice) to: O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Section 7.5 Agent. ABX hereby irrevocably appoints Airborne as its agent
and limited attorney-in-fact to take any action as Airborne may deem necessary
or appropriate to effect the tax sharing contemplated by this Agreement
including, without limitation, those actions specified in Treasury Regulation
Section 1.1502-77(a) and analogous provisions of state and local law.
Section 7.6 Amendments; Waivers. Subject to applicable law, this
Agreement may only be amended pursuant to a written agreement executed by each
party, and no waiver of compliance with any provision or condition of this
Agreement and no consent provided for in this Agreement shall be effective
unless evidenced by a written instrument executed by the party against whom such
waiver or consent is to be effective. No waiver of any term or provision of this
Agreement shall be construed as a further or continuing waiver of such term or
provision or any other term or provision.
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Section 7.7 Counterparts. To facilitate execution, this Agreement may be
executed in any number of counterparts (including by facsimile transmission),
each of which shall be deemed to be an original, but all of which together shall
constitute one binding agreement on the parties, notwithstanding that not all
parties are signatories to the same counterpart.
Section 7.8 Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties and their
respective successors and permitted assigns. No party to this Agreement may
assign its rights or delegate its obligations under this Agreement to any other
Person without the express prior written consent of the other parties hereto.
Section 7.9 Severability. If any provision or any part of any provision
of this Agreement shall be void or unenforceable for any reason whatsoever, then
such provision shall be stricken and of no force and effect. However, unless
such stricken provision goes to the essence of the consideration bargained for
by a party, the remaining provisions of this Agreement shall continue in full
force and effect and, to the extent required, shall be modified to preserve
their validity. Upon such determination that any term or other provision or any
part of any provision is void or unenforceable, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the fullest extent possible.
Section 7.10 Authority. Each of the parties hereto represents to the
other that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary
corporate or other actions, (c) it has duly and validly executed and delivered
this Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
Section 7.11 Headings; Certain Construction Rules. The Article, Section
and paragraph headings and the table of contents contained in this Agreement are
for reference purposes only and do not form a part of this Agreement and do not
in any way modify, interpret or construe the intentions of the parties. As used
in this Agreement, unless otherwise provided to the contrary, (a) all references
to days or months shall be deemed references to calendar days or months and (b)
any reference to a "Section," "Article," or "Exhibit" shall be deemed to refer
to a section or article of this Agreement or an exhibit or schedule to this
Agreement. The words "hereof," "herein" and "hereunder" and words of similar
import referring to this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." Unless otherwise specifically
provided for herein, the term "or" shall not be deemed to be exclusive.
Section 7.12 Further Actions. At any time and from time to time at the
request of a Party, the other Party shall, at its own expense (except as
otherwise provided herein), take such
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action and execute and deliver such documents as may be reasonably necessary to
effectuate the purposes of this Agreement.
Section 7.13 Gender, Tense, Etc. Where the context or construction
requires, all words applied in the plural shall be deemed to have been used in
the singular, and vice versa; the masculine shall include the feminine and
neuter, and vice versa; and the present tense shall include the past and future
tense, and vice versa.
Section 7.14 No Third Party Rights. Nothing in this Agreement, whether
express or implied, is intended to or shall confer any rights, benefits or
remedies under or by reason of this Agreement on any Persons other than the
parties and their respective successors and permitted assigns, nor is anything
in this Agreement intended to relieve or discharge the obligation or liability
of any third Persons to any party, nor shall any provisions give any third
Persons any right or subrogation over or action against any party.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized on the day and
year first above written.
AIRBORNE, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
ABX AIR, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
[SIGNATURE PAGE TO TAX SHARING AGREEMENT]
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