Exhibit ____
AGREEMENT TO JOIN IN THE FILING OF
CONSOLIDATED INCOME TAX RETURNS
THIS AGREEMENT is made and entered into this 14th day of
December 2001, by and between Jordan Industries, Inc., an Illinois
corporation (the "Company"), and each of the parties a signatory hereto
(hereinafter collectively referred to as the "Subsidiary")
WITNESSETH:
WHEREAS, the Company is the owner of 80% or more of the
outstanding shares of the capital stock of the Subsidiary and may,
therefore, include the income and expense of the Subsidiary in the
Company's consolidated Federal income tax returns; and
WHEREAS, the parties hereto desire to consolidate such
returns upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein set forth, the parties hereto do
hereby agree as follows:
1. Filing and Preparation of Future Returns. The
Subsidiary agrees to consent to the joining with the Company and its other
consolidated subsidiaries (the Company, Subsidiary and each of the other
consolidated subsidiaries are hereinafter referred to as the "Group") in
the filing of consolidated Federal income tax returns for the taxable year
ending December 31, 2002, and each taxable year thereafter, in accordance
with applicable income tax laws and regulations. The Company agrees that it
will prepare and file in a timely manner all Federal and other income tax
returns required to be filed on behalf of the Company and its consolidated
subsidiaries, including the Subsidiary, and will pay the taxes shown to be
due thereon.
2. Estimated Tax Payments; Tax Benefit Reimbursements.
(a) On or before the 10th day prior to the due
date of any estimated tax payment on account of the consolidated tax
liability of the Group for a taxable year, the Subsidiary shall pay
to the Company an amount equal to the Subsidiary's separate return
tax liability, as defined in Treasury Regulations
ss.1.1552-1(a)(2)(ii) (the "Separate Return Tax Liability")
multiplied by a fraction the numerator of which equals one and the
denominator of which equals the total number of estimated tax
payments to be made on account of the consolidated tax liability of
the Group for such taxable year. If the estimated tax payment of the
Group is based upon the prior taxable year's consolidated tax
liability, the Subsidiary's payment under this Paragraph shall be
determined by using its Separate Return Tax Liability for such prior
year, and if such estimated tax payment is based upon the current
year's tax liability, the Subsidiary's payment under this Paragraph
shall be determined by using its estimated separate return tax
liability for such current year.
(b) In the event that the sum of any payments
based on estimated amounts made by the Subsidiary in a taxable year
under Paragraph 2(a) exceeds the Subsidiary's final Separate Return
Tax Liability for such taxable year, the Company shall pay to the
Subsidiary the amount of such excess on or before the date 15 days
prior to the due date for the filing of the consolidated Federal
income tax return to which such excess relates. In the event that the
final Separate Return Tax Liability of the Subsidiary for a taxable
year exceeds the sum of any payments based on estimated amounts made
by the Subsidiary under Paragraph 2(a) for such taxable year, the
Subsidiary shall pay such excess to the Company on or before the date
15 days prior to the due date for the filing of the consolidated
Federal income tax return to which such excess relates.
(c) In addition to any amounts which may be
payable by the Company to the Subsidiary under Paragraph 2(b), the
Company shall also reimburse the Subsidiary for the amount by which
the Group's income taxes are reduced as a result of the
consolidation of the Subsidiary in the Group's income tax return,
such reimbursement to be made within 30 days after the filing of the
consolidated Federal income tax return in which such tax reduction
is reflected. In the event the computation of the Subsidiary's
income tax liability under Paragraph 2(a) above shall reflect that
the Subsidiary incurred a loss for any year, and that the Subsidiary
would have been due a Federal income tax refund as a result of
certain loss carryback provisions of the Internal Revenue Code or
any other provisions of the Internal Revenue Code, then the Company
shall pay to the Subsidiary an amount equal to such hypothetical
income tax refund plus the amount of any estimated tax payments for
such year made by the Subsidiary to the Company; provided, however,
in no event shall the Company be required to make any payment
hereunder in excess of the aggregate of (i) all such estimated tax
payments for such year made by the Subsidiary to the Company, (ii)
all payments for such year made by the Subsidiary to the Company
pursuant to Paragraph 2(b) hereof and (iii) any reduction in the
taxes of the Company resulting from such loss of the Subsidiary.
(d) Any payments or reimbursements hereunder shall
be computed by the independent public accountants of the Company, in
accordance with generally accepted accounting principles and
applicable tax laws, rules and regulations.
3. Other Income Taxes. In the event there shall be
imposed on the Subsidiary any state or local tax based on net income to
which the same or similar principles of consolidated income taxation such
as those presently in effect under Federal income tax rules may be applied
and practical, the Subsidiary and the Company agree that the above
agreements shall also be applicable with respect to such state or local
income taxes.
4. Termination. This agreement shall continue in effect
until terminated by written agreement between the parties hereto.
5. Entire Agreement. This agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter
hereof and supersedes and cancels any and all such previous written or oral
agreements between the parties hereto.
6. Governing Law. This agreement shall be governed by the
internal laws of the state of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
JORDAN INDUSTRIES, INC.
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
MOTORS AND GEARS HOLDINGS, INC.
KINETEK, INC.
KINETEK INDUSTRIES, INC.
FIR Group Holdings, Inc.
FIR Group Holdings Italia, S.r.l. (Italian LLC)
Construgioni Italiane Motori Elettrici, S.p.A.
(Italian Corporation)
SelinSistemi, S.p.A. (Italian Corporation)
FIR Electromeccanica, S.p.A. (Italian Corporation)
T.E.A. Technologie Electromeccaniche ed Automazione,
S.r.l. (Italian LLC)
Motion Holdings, Inc.
Motion Control Engineering, Inc.
▇▇▇▇▇▇-▇▇▇▇▇ Industries, Inc.
▇▇▇▇▇▇-▇▇▇▇▇ de Mexico S.A. de C.V
The Imperial Electric Company
Gear Research, Inc.
Advanced D.C. Holdings, Inc.
Advanced D.C. Motors, Inc.
Sermed S.A.R.L.
Advanced D.C. Motors GmbH
Electric Vehicle Components Ltd.
Electrical Design and Control Company
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President