Exhibit 2.9
Tax Sharing Agreement
This Tax Sharing Agreement, dated November __, 2000 is by and
between Adaptec, Inc. ("Adaptec"), a Delaware corporation, and Roxio, Inc., a
Delaware corporation ("Roxio"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to such terms in
that certain Master Separation and Distribution Agreement between the parties
hereto, dated as of September __, 2000.
Recitals
A. Concurrently with the execution of this agreement, Adaptec is
transferring to Roxio all of the assets owned by Adaptec related to its software
products business. In consideration, Roxio will assume Adaptec's liabilities
related to that business and also issue stock to Adaptec, which will constitute
all of the Roxio stock then outstanding. At the same time, Adaptec Mfg. (S)
Pte., Ltd., a subsidiary of Adaptec organized under the laws of Singapore,
("AMS") will transfer to Roxio CI, Ltd., a Cayman Island corporation, ("RCI")
all of the assets owned by AMS related to the software products business. In
consideration, RCI will assume the liabilities of AMS related to that business
and also issue stock to AMS, which will constitute all of the RCI stock then
outstanding.
B. The transfer of software products business assets to Roxio and RCI
will be made in preparation for a distribution by Adaptec to its shareholders of
the stock of Roxio (the "Distribution"). Prior to the Distribution, AMS will
distribute to Adaptec the stock of RCI, and Adaptec will contribute the RCI
stock to Roxio.
C. Until the Distribution, Roxio will be a member of the affiliated
group of corporations of which Adaptec is the common parent (the "Adaptec
Group"). During that period, Roxio will join other members of the group in
filing consolidated federal income tax returns and may also join in filing
consolidated, combined or unitary returns under the tax laws of some states.
D. Adaptec and Roxio would like to allocate responsibilities for
certain tax matters. In particular, the parties would like to provide for the
payment by Roxio of its share of tax liabilities determined on a consolidated,
combined, or unitary basis. The parties would also like to provide and fix the
responsibilities for certain administrative matters, such as (1) the preparation
and filing of tax returns for periods beginning before the date of the
Distribution (the "Distribution Date"), (2) the payment of taxes shown to be due
and payable on those returns (as well as any estimated or advance payments
required before the filing of those returns), (3) the retention, maintenance and
provision of access to all records necessary to prepare and file appropriate tax
returns, and (4) the conduct of audits, examinations, and proceedings that could
result in a redetermination of tax liabilities for periods beginning before the
Distribution Date.
Agreement
To accomplish the purposes described above, Adaptec and Roxio agree as
follows:
1. Allocation of Tax Liability
(a) REGULAR FEDERAL INCOME TAX. If the consolidated
federal income tax liability of the Adaptec Group for any taxable year during
which Roxio is a member of the group is determined on a regular tax basis, the
amount of federal income taxes allocable to Roxio shall be determined using the
method described in section 1.1502-32(b)(3)(iv)(D) of the Treasury regulations.
Thus, Roxio shall be required to pay for any reduction in its separate company
liability because of the absorption of losses, credits or other tax attributes
of other members. Conversely, Roxio shall be entitled to compensation to the
extent that the absorption of its losses, credits, or other tax attributes
reduces the group's consolidated federal income tax liability.
(b) Federal Alternative Minimum Tax
(i) GENERAL RULE. If the Adaptec Group pays
alternative minimum tax ("AMT") for any taxable year during which Roxio is a
member of the group, Roxio's share of the group's consolidated federal income
taxes shall equal its share of the group's consolidated AMT, determined under
section 1(b)(ii), with the adjustments provided in Section 1(b)(iii) to reflect
the absorption of losses, credits and other tax attributes.
(ii) ROXIO'S SHARE OF CONSOLIDATED AMT. Roxio's
share of the group's consolidated AMT for any year shall equal the excess, if
any, of (A) the total consolidated AMT, over (B) the consolidated AMT for the
year computed by excluding Roxio's items of income, gain, deduction and loss,
and Roxio's credits.
(iii) ADJUSTMENTS FOR ABSORPTION OF TAX
ATTRIBUTES. Roxio's share of the group's consolidated AMT shall be adjusted to
reflect the absorption of losses, credits, or other tax attributes, based on
principles similar to those underlying the method of allocating regular federal
income taxes described in section 1.1502-32(b)(3)(iv)(D) of the Treasury
regulations. If, for any taxable year, the regular tax attributes allocable to
members other than Roxio that can be carried forward to the next taxable year
are less than those carryforwards would have been if Roxio had not been a member
of the group, then Roxio's share of the group's consolidated federal income tax
liability shall be increased to reflect the incremental absorption of the tax
attributes of other members. Conversely, if Roxio's regular tax attributes are
used to offset taxable income of other members, or tax liability attributable to
such income, then Roxio's share of the group's consolidated federal income tax
liability shall be decreased to reflect the use of Roxio's tax attributes. The
amount of the adjustment for absorbed losses shall equal the product of the
absorbed losses and the highest marginal regular federal income tax rate in
effect for the year in which the losses are absorbed. If the adjustment
described in this Section 1(b)(iii) exceeds the amount determined in Section
1(b)(ii), Roxio shall be entitled to receive the amount of such excess pursuant
to Section 2.
(c) OTHER TAXES. Roxio's share of taxes other than
federal income taxes that are determined on a consolidated, combined, or unitary
basis shall be determined by applying
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the principles underlying the allocation method described in section
1.1502-32(b)(3)(iv)(D) of the Treasury regulations. Thus, Roxio's share of the
taxes will generally equal the tax liability that Roxio would have had if it had
filed a separate return for the relevant period. Roxio shall be required to pay
Adaptec to the extent that Roxio's separate company liability is reduced by the
absorption of losses, credits or other tax attributes of other members.
Conversely, Adaptec shall compensate Roxio to the extent that the absorption of
Roxio's losses, credits, or other tax attributes reduces the combined tax
liability.
2. PAYMENT OF ALLOCATED TAX. Roxio shall pay to Adaptec Roxio's
share of any tax payment made with the filing of a tax return within 30 days
after filing. Within that same period, Adaptec shall make to Roxio any payments
required as a result of benefits realized by Adaptec or other members of the
Adaptec Group from the use of Roxio's tax attributes.
3. REFUNDS. If Adaptec receives a refund because of an
overpayment of taxes shown on a tax return, as originally filed, Adaptec shall
pay to Roxio that portion of the refund, if any, equal to the excess of (i) the
payments made by Roxio to Adaptec pursuant to Section 9(b) in respect of
estimated taxes for the taxable year covered by the return over (ii) Roxio's
share of the tax liability reported on the return, allocated as provided in
Section 1.
4. ALLOCATION OF MINIMUM TAX CREDITS. No portion of the
consolidated minimum tax credit of the Adaptec Group shall be allocated to Roxio
when Roxio leaves the group. If the Treasury Department issues regulations that
require the allocation to Roxio of a portion of the group's consolidated minimum
tax credit, Roxio shall be required to pay to Adaptec the amount of the credit
so allocated.
5. CARRYBACK OF POST-DISTRIBUTION TAX ATTRIBUTES OF ROXIO. If,
for any taxable period beginning on or after the Distribution Date, Roxio
recognizes a loss, credit, or similar tax attribute that, under applicable law,
can or must be carried back to a taxable period during which Roxio joined one or
more other members of the Adaptec Group in filing consolidated, combined or
unitary returns, Adaptec shall, at Roxio's expense, file appropriate refund
claims within a reasonable period after being requested by Roxio. Adaptec shall
promptly remit to Roxio any refunds received with respect to any tax attribute
so carried back.
6. CONDUCT OF TAX CONTESTS
(a) SEPARATE ROXIO CLAIMS. Roxio shall have sole and
complete authority to contest any claim by a taxing authority arising from an
examination of a return that includes only Roxio (a "Separate Roxio Claim").
(b) GROUP CLAIMS. Except as provided in Section 6(a),
Adaptec shall be entitled to control the contest of any claim by a taxing
authority arising from an examination of any return filed by one or more members
of the Adaptec Group. Roxio shall have no right to participate in the contest of
a claim to which this Section 6(b) applies (a "Group Claim").
(c) COOPERATION. Adaptec and Roxio shall each provide the
assistance reasonably requested by the other in conducting any tax contest,
including execution of any powers of attorney
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or other appropriate documentation, attendance of administrative or judicial
proceedings as requested, performance of necessary computations, and, subject to
the confidentiality provisions of Section 12, provision of access to or
furnishing books, records, tax returns, and supporting work papers.
7. Redetermined Tax Liabilities
(a) SEPARATE ROXIO CLAIMS. If a redetermination of taxes
results from a Separate Roxio Claim, Roxio shall pay any resulting increase in
tax liability and shall be entitled to receive any refunds related to a decrease
in tax liability attributable to the claim
(b) GROUP CLAIMS. Any tax deficiency arising from a Group
Claim shall be paid to the relevant taxing authority by Adaptec, and Adaptec
shall be entitled to receive any tax refund arising from the contest of the
Group Claim. Except as provided in the following sentence, Adaptec shall have no
right to reimbursement from Roxio for any portion of a deficiency and shall have
no obligation to pay any portion of a refund to Roxio. Roxio shall be required
to reimburse Adaptec for that portion of a deficiency resulting from a reduction
of a loss, credit or similar tax attribute of Roxio that was carried back from a
post-Distribution period pursuant to Section 5.
8. Retention of and Access to Records; Cooperation and Assistance
(a) RETENTION OF AND ACCESS TO RECORDS. Each party shall
retain all tax returns for periods beginning before the Distribution Date,
together with all related reports, work papers, schedules or other documents or
computer files, and, subject to the confidentiality provisions of Section 12,
shall make these documents or files available to the other upon request. Neither
party shall dispose of any of these documents or files without the other's
permission.
(b) COOPERATION AND ASSISTANCE. Subject to the
confidentiality provisions of Section 12, Adaptec and Roxio shall provide each
other with such cooperation, assistance, and information as either of them may
reasonably request of the other with respect to the filing with any taxing
authority of any tax return, amended return, claim for refund, or other
document. With respect to any return for a period beginning before the
Distribution that includes Roxio and at least one other member of the Adaptec
Group (a "Pre-Distribution Group Return"), such assistance shall include the
timely submission by Roxio to Adaptec of pro forma tax returns for Roxio.
Roxio's obligations under this paragraph 9(b) shall include the submission of a
pro forma return for the tax period of Roxio that will end on the Distribution
Date.
9. Preparation of Tax Returns; Estimated Payments
(a) FILING OF RETURNS. Adaptec shall prepare and timely
file all tax returns of the Adaptec Group other than returns that include only
Roxio. Within 45 days after the close of each taxable period (including, if
applicable, the period that ends on the Distribution Date), Roxio shall, subject
to the confidentiality provisions of Section 12: (1) furnish to Adaptec draft
tax returns for Roxio and all supporting information and documentation useful in
preparing the relevant consolidated, combined, or unitary return; (2) allow
Adaptec access at any reasonable time after the Distribution Date to all tax
returns of Roxio and supporting papers for those returns; and (3) furnish
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to Adaptec such additional tax information and documents as Adaptec may
reasonably request. Roxio shall cooperate in connection with the preparation of
any consolidated, combined or unitary returns that it joins in filing with one
or more other members of the Adaptec Group. Adaptec shall be responsible for any
payments to the applicable taxing authorities required in connection with those
returns. Adaptec may provide services to assist Roxio in fulfilling its
obligations under this Section 9(a), but only to the extent provided in a
separate transitional services agreement between the parties. Except as
expressly provided in a separate agreement between the parties, Adaptec shall
have no obligation in connection with the preparation or filing of tax returns
by Roxio.
(b) ESTIMATED PAYMENTS. Adaptec shall make all estimated
payments to any taxing authorities required in connection with consolidated,
combined or unitary returns of members of the Adaptec Group, and all payments
required in connection with requests for extensions of time to file those
returns. After making such a payment, Adaptec shall promptly notify Roxio of any
portion of the payment that Adaptec believes in good faith to be attributable to
Roxio's share of the aggregate tax liability, as determined under Section 1.
Within 10 days after receipt of such notice, Roxio shall pay such amount to
Adaptec or advise Adaptec of the basis for its disagreement.
10. Indemnification
(a) INDEMNITY OBLIGATIONS OF ADAPTEC. Adaptec shall
indemnify Roxio and hold Roxio harmless from and against:
(i) any liability, cost, or expense arising out
of the fraudulent or negligent preparation by Adaptec of any information,
workpapers, documents, or other items used in the preparation of, or presented
in, any return, amended return, or claims for refund; and
(ii) any tax liability, and related cost or
expense, incurred or paid by Roxio in excess of that portion of the tax
liability allocated to Roxio under this Agreement.
(b) INDEMNITY OBLIGATIONS OF ROXIO. Roxio shall indemnify
Adaptec and hold it harmless from and against any taxes, and related interest
and penalties, resulting from
(i) the application to the Distribution of
section 355(e) of the Internal Revenue Code (the "Code") by reason of an
acquisition of Roxio stock; or
(ii) the failure of the Distribution to qualify
for nonrecognition treatment under section 355(c) of the Code, if such failure
results from (A) a failure by Roxio to continue its active trade or business
after the Distribution, (B) the treatment of the Distribution as a device for
the distribution of earnings and profits, within the meaning of section
355(a)(1)(B) of the Code, because of one or more repurchases by Roxio of its
stock, or (C) any other act or omission by Roxio.
11. GROSS-UP FOR TAXES ON REQUIRED PAYMENTS. If the receipt or
accrual of any payment required by this Agreement is subject to any tax, the
payor shall pay an additional amount so that the total amount received by the
payee, net of any applicable taxes, equals the amount of the required payment.
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12. CONFIDENTIALITY OF DOCUMENTS AND INFORMATION. Any documents or
information provided pursuant to this Agreement in connection with a tax contest
or filing with a tax authority shall be provided or disclosed by the recipient
only to those of its employees responsible for any tax contest or filing or to
attorneys or accountants advising the recipient on these matters. Any wider
dissemination of these documents or this information shall be allowed only if
required by law or authorized by the party providing the documents or
information.
13. ALLOCATION OF TAXES OF FOREIGN SUBSIDIARIES. If any foreign
affiliate of Adaptec engaged in the software products business is required to
join in the filing of a consolidated, combined, or unitary return for a period
beginning before the Distribution Date with at least one affiliate of Adaptec
that is not engaged in the software products business, the allocation of tax
liability between those corporations shall be made by applying principles
similar to those adopted by this Agreement. The parties agree to apply
consistent allocation methods in allocating the earnings and profits of AMS
between AMS and RCI pursuant to section 1.312-10(a) of the Treasury regulations.
14. DISPUTE RESOLUTION.
Resolution of any and all Disputes arising from or in connection with this
Agreement shall be exclusively governed by and settled in accordance with the
provisions of this Section 14.
(a) Negotiation. The parties shall make a good faith
attempt to resolve any Dispute arising out of or relating to this Agreement
through informal negotiation between appropriate representatives from each of
Adaptec and Roxio. If at any time either party feels that such negotiations are
not leading to a resolution of the Dispute, such party may send a notice to the
other party describing the Dispute and requesting a meeting of the senior
executives from each party. Within ten (10) business days after such notice is
given, each party shall select appropriate senior executives (e.g., director or
V.P. level) of each party who shall have the authority to resolve the matter and
shall meet to attempt in good faith to negotiate a resolution of the Dispute
prior to pursuing other available remedies. During the course of negotiations
under this Section 14(a), all reasonable requests made by one party to the other
for information, including requests for copies of relevant documents, will be
honored. The specific format for such negotiations will be left to the
discretion of the designated negotiating senior executives but may include the
preparation of agreed upon statements of fact or written statements of position
furnished to the other party. In the event that any Dispute arising out of or
related to this Agreement is not settled by the parties within thirty (30) days
after the first meeting of the negotiating senior executives, either party may
commence litigation with respect to the Dispute. However, except as provided
below in Section 14(b), neither party shall commence litigation against the
other party to resolve the Dispute (i) until the parties try in good faith to
settle the Dispute by negotiation for at least thirty (30) days after the first
meeting of the negotiating senior executives or (ii) until forty (40) days after
notice of a Dispute is given by either party to the other party, whichever
occurs first.
(b) PROCEEDINGS. Any Dispute regarding the following is
not required to be negotiated prior to seeking relief from a court of competent
jurisdiction: breach of any obligation of confidentiality; infringement,
misappropriation, or misuse of any intellectual property right; or any other
claim where interim relief from the court is sought to prevent serious and
irreparable injury to
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a party. However, the parties shall make a good faith effort to negotiate such
Dispute, according to Section 14(a), while such court action is pending.
(c) CONTINUITY OF SERVICE AND PERFORMANCE. Unless
otherwise agreed in writing, the parties will continue to provide service and
honor all other commitments under this Agreement and each Ancillary Agreement
during the course of dispute resolution pursuant to the provisions of this
Section 14 with respect to all matters not subject to such dispute, controversy
or claim.
15. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY OR ITS
SUBSIDIARIES BE LIABLE TO THE OTHER PARTY OR ITS SUBSIDIARIES FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER
CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY
OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
16. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
shall supersede all prior written and oral and all contemporaneous oral
agreements and understandings with respect to the subject matter hereof.
17. Governing Law. This Agreement shall be construed in accordance
with and all Disputes hereunder shall be governed by the laws of the State of
California, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods. The Superior Court
of Santa ▇▇▇▇▇ County and/or the United States District Court for the Northern
District of California, San ▇▇▇▇ Division, shall have jurisdiction and venue
over all Disputes between the parties that are permitted to be brought in a
court of law pursuant to Section 14 above.
18. Notices. Any notice, demand, offer, request or other
communication required or permitted to be given by either party pursuant to the
terms of this Agreement shall be in writing and shall be deemed effectively
given the earlier of (i) when received, (ii) when delivered personally, (iii)
one (1) Business Day after being delivered by facsimile (with receipt of
appropriate confirmation), (iv) one (1) Business Day after being deposited with
a nationally recognized overnight courier service or (v) four (4) days after
being deposited in the U.S. mail, First Class with postage prepaid, and
addressed to the attention of:
If to Adaptec, Inc.:
Adaptec, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President and General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Roxio, Inc.:
Roxio, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: [ ]
Facsimile No.: [ ]
with a copy to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Adaptec and Roxio may substitute a different address or facsimile number, from
time to time, if such substitute is provided to the intended notice recipient in
writing by notice given in the manner provided in this Section 18.
19. Counterparts. This Agreement may be executed in counterparts
via facsimile or otherwise, each of which shall be deemed to be an original but
all of which shall constitute one and the same agreement.
20. Binding Effect; Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective legal
representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement. This Agreement may
be enforced separately by each member of the Adaptec Group and each member of
the Roxio Group. Except as herein specifically provided to the contrary, neither
party may assign this Agreement or any rights or obligations hereunder, without
the prior written consent of the other party, and any such assignment shall be
void; provided, however, either party (or its permitted successive assignees or
transferees hereunder) may assign or transfer this Agreement as a whole without
consent to an entity that succeeds to all or substantially all of the business
or assets of such party to which this Agreement relates.
21. Severability. The parties hereto have negotiated and prepared
the terms of this Agreement in good faith with the intent that each and every
one of the terms, covenants and conditions herein be binding upon and inure to
the benefit of the respective parties. Accordingly, if any one or more of the
terms, provisions, promises, covenants or conditions of this Agreement or the
application thereof to any person or circumstance shall be adjudged to any
extent invalid, unenforceable, void or voidable for any reason whatsoever by a
court of competent jurisdiction, such provision shall be as narrowly construed
as possible, and each and all of the remaining terms,
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provisions, promises, covenants and conditions of this Agreement or their
application to other persons or circumstances shall not be affected thereby and
shall be valid and enforceable to the fullest extent permitted by law. To the
extent this Agreement is in violation of applicable law, then the parties agree
to negotiate in good faith to amend the Agreement, to the extent possible
consistent with its purposes, to conform to law.
22. Waiver of Breach. The waiver by either party hereto of a
breach or violation of any provision of this Agreement shall not operate as, or
be construed to constitute, a waiver of any subsequent breach of the same or
another provision hereof.
23. Amendment and Execution. This Agreement and amendments hereto
shall be in writing and executed in multiple copies via facsimile or otherwise
on behalf of Adaptec and Roxio by their respective duly authorized officers and
representatives. Each multiple copy shall be deemed an original, but all
multiple copies together shall constitute one and the same instrument.
24. 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.
25. Descriptive Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When a reference is made in this Agreement to
a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated.
26. Gender and Number. Whenever the context of this Agreement
requires, the gender of all words herein shall include the masculine, feminine
and neuter, and the number of all words herein shall include the singular and
plural.
27. Additional Assurances. Except as may be specifically provided
herein to the contrary, the provisions of this Agreement shall be self-operative
and shall not require further agreement by the parties; provided, however, at
the request of either party, the other party shall execute such additional
instruments and take such additional acts as are reasonable, and as the
requesting party may reasonably deem necessary, to effectuate this Agreement.
28. Force Majeure. Neither party shall be liable or deemed to be
in default for any delay or failure in performance under this Agreement or other
interruption of service deemed to result, directly or indirectly, from acts of
God, civil or military authority, acts of public enemy, war, accidents,
explosions, earthquakes, floods, failure of transportation, strikes or other
work interruptions by either party's employees, or any other similar cause
beyond the reasonable control of either party unless such delay or failure in
performance is expressly addressed elsewhere in this Agreement.
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WHEREFORE, the parties have signed this Tax Sharing Agreement effective
as of the date first set forth above.
ADAPTEC, INC. ROXIO, INC.
By: By:
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Name: Name:
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Title: Title:
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