TAX SHARING AGREEMENT
BY AND BETWEEN
OLIN CORPORATION AND PRIMEX TECHNOLOGIES, INC.
This Tax Sharing Agreement (the "Agreement") dated as of _____________,
between Olin Corporation, a Virginia Corporation ("Olin") and Primex
Technologies, Inc., a Virginia Corporation ("Primex "), is entered into in
connection with a Distribution Agreement (the "Distribution Agreement") dated
____________, by and between Olin and Primex.
WHEREAS, until the end of the date (the "Distribution Date") on which Olin
will distribute to its stockholders all the issued and outstanding common stock
of Primex (the "Distribution"), Primex and its direct and indirect subsidiaries
and Olin will be members for Federal income tax purposes of an Affiliated Group
of corporations for which Olin, the common parent corporation, will file a
consolidated Federal income tax return.
WHEREAS, on the beginning of the first day after the Distribution Date, the
Primex Affiliated Group will cease to be members of the Olin Affiliated Group;
WHEREAS, the Distribution is intended to be a tax-free spin-off within the
meaning of Section 355 of the Code;
WHEREAS, Olin and Primex are entering into this Agreement to provide for
the allocation between Olin and Primex of all responsibilities, liabilities and
benefits relating to all foreign, federal, state and local taxes paid or payable
by either Olin or Primex for all taxable periods, whether beginning before, on,
or after the Distribution Date and to provide for certain other matters.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows.
This Agreement is the "Tax Sharing Agreement" referred to in Section 1.01
of the Distribution Agreement. As used in this Agreement, terms defined in the
Distribution Agreement but not defined herein shall have the meanings set forth
in the Distribution Agreement, and the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and the
plural forms of the terms defined):
"Affiliated Group" means an affiliated group of corporations within the
meaning of Section 1504(a) of the Code for the taxable period in question.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor thereto, as in effect for the taxable period in question.
"Distribution Agreement" means the agreement dated as of the ____day of
_______, 1996 by and between Olin and Primex providing for the Distribution. For
purposes of this Agreement, the Distribution shall be effective as of the close
of the Distribution Date.
"Indemnitee" is defined in Section 4.01 (a) herein.
"Indemnitor" is defined in Section 4.01 (a) herein.
"Indemnity Issue" is defined in Section 4.01 (a) herein.
"IRS" means the United States Internal Revenue Service or any successor
thereto, including, but not limited to its agents, representatives, and
"Olin Affiliated Group" means, for each taxable period, the Affiliated
Group of which Olin or any successor of Olin is the common parent.
"Personal and Real Property Taxes" is defined in Section 3.01 (c) herein.
"Post-Distribution Period" means any period beginning after the
"Pre-Distribution Period" means any period ending on or before the
"Primex Affiliated Group" means, for each taxable period, the Affiliated
Group of which Primex or any successor of Primex is the common parent.
"Straddle Period" is defined in Section 3.01(b)(iv).
"Taxes" means all forms of taxation, whenever created or imposed, and
whenever imposed by a local, municipal, federal, state, foreign or other body (a
"Taxing Authority"), and without limiting the generality of the foregoing, shall
include net income, alternative minimum tax, gross income, sales, use, ad
valorem, gross receipts, value added, franchise, license, transfer, withholding,
payroll, employment, excise, severance, stamp, property, custom duty or other
tax, or governmental charge of any kind whatsoever, together with any related
interest, penalties or other additions to tax, or additional amount imposed by
such Taxing Authority.
"Taxing Authority" is defined under the term "Taxes".
"Tax Return" means any return, filing, questionnaire, information statement
or other document required to be filed, including amended returns that may be
filed, for any period with any Taxing Authority, whether foreign or domestic
(including Federal, state and local), in connection with any Tax (whether or not
a payment is required to be made with respect to such filing).
FILING OF TAX RETURNS AND PROVISION OF TAX INFORMATION
SECTION 2.01. Manner of Filing. All Tax Returns filed by Olin and by
Primex after the Distribution Date shall be prepared on a basis that is
consistent with a tax-free spin-off within the meaning of Section 355 of the
Code, and shall be filed on a timely basis by the party responsible for such
filing under this Agreement.
SECTION 2.02. Pre-Distribution Tax Returns. All Tax Returns required to
be filed for periods ending on or before the Distribution Date shall be filed by
SECTION 2.03. Post-Distribution Tax Returns. All Tax Returns of the
Primex Affiliated Group or any member thereof for periods beginning after the
Distribution Date shall be filed by Primex and all Tax Returns of the Olin
Affiliated Group or any member thereof for periods beginning after the
Distribution Date shall be filed by Olin.
SECTION 2.04. Tax Bases of Assets Transferred. Within ninety (90) days
following the Distribution Date, Olin shall notify Primex of the tax attributes
associated with the companies, and the tax bases of the assets and liabilities
transferred to Primex in connection with the Distribution. Within sixty (60)
days after filing the consolidated Federal income tax return for the Olin
Affiliated Group for 1996, Olin shall notify Primex of any adjustments to the
tax attributes and the bases of such assets and liabilities and shall provide
Primex with supporting documentation which details the calculation of such
PAYMENT OF TAXES
SECTION 3.01. Allocation of Tax Liabilities. (a) Consolidated
Federal Income Tax - (i) Olin shall indemnify and hold harmless Primex and all
members of the Primex Affiliated Group from any Federal income tax liability
imposed on the Olin Affiliated Group for any period ending on or prior to the
(ii) Primex shall indemnify and hold harmless Olin and all members of the
Olin Affiliated Group from and against any Federal income tax liability imposed
on the Primex Affiliated Group with respect to any period ending after the
(b) State, Local and Foreign Income and Franchise Taxes (i) Olin shall
indemnify and hold harmless Primex and all members of the Primex Affiliated
Group from any state, local and foreign income and franchise Tax imposed on
Olin, the Olin Affiliated Group or any member of the Olin Affiliated Group for
any period ending on or prior to the Distribution Date.
(ii) Primex shall indemnify and hold harmless Olin and all members of the
Olin Affiliated Group from any state, local and foreign income and franchise Tax
imposed on Primex, the Primex Affiliated Group or any member of the Primex
Affiliated Group for any period beginning after the Distribution Date.
(iii) To the extent permitted by any applicable state, local or foreign
law, Olin, the Olin Affiliated Group and all members of the Olin Affiliated
Group shall treat the Distribution Date as the last day of the taxable period.
Olin shall file all state, local and foreign income and franchise Tax Returns
for such period and pay all applicable Tax liabilities.
(iv) (a) To the extent any state, local or foreign law requires Primex,
the Primex Affiliated Group or any member of the Primex Affiliated Group to file
state, local or foreign income or franchise Tax Returns for a tax period
beginning before and ending after the Distribution Date ("Straddle Period"),
Primex shall be responsible for any such filings. Primex shall timely file and
pay all income or franchise Tax applicable to returns
filed under this Section 3.01 (b) (iv) (a). Tax paid by Primex attributable to
the period ending on the Distribution Date shall be the responsibility of Olin
and shall be computed by applying to the Tax paid a ratio (not to exceed 100%)
of taxable income computed as though the taxable year ended on the Distribution
Date to total taxable income reflected on the Tax Return. In the event there is
a loss for the pre-distribution period, such ratio shall be zero. In the event
the Tax liability on the Tax Return for the Straddle Period is computed on a
basis other than taxable income, (e.g. franchise tax liability), pre-
distribution Taxes shall be determined as if the taxable year of Primex ended on
the Distribution Date. Any amount owed by Olin to Primex pursuant to this
Section 3.01 (b) (iv) shall be decreased by estimated taxes paid by Olin. If the
estimated taxes paid by Olin with respect to the Straddle Period Tax Return
exceed the Tax owed by Olin to Primex under this paragraph, such excess shall be
paid by Primex to Olin.
(b) Primex shall provide Olin for review, comment and approval copies of
such Straddle Period Tax Returns, together with a calculation of pre-
distribution taxes payable by Olin to Primex, or by Primex to Olin, within 20
working days of the due date of such Tax Return. Upon review and acceptance of
the Tax Return and pre-distribution tax calculation, Olin shall pay the amount
of such Tax due to Primex by the later of the due date of the return or ten (10)
days after receipt of the copies of such returns and Tax calculations from
Primex for review, comment and approval. Primex shall pay Olin any amount due by
the due date of the Straddle Period Tax Return. The party not preparing the Tax
Return shall have a right to object to such Tax Return (or calculation of pre-
distribution tax) on the grounds that it is inaccurate. In the event of a
dispute, the parties shall use their best efforts to resolve the dispute as
expeditiously as possible. If the dispute is not resolved prior to the filing of
the Tax Return, the parties agree to file an amended return, if necessary, upon
resolution of the dispute in accordance with Section 6.02 of Article VI.
(c) Personal and Real Property Taxes. (i) The liability for all Taxes
for any tax period that includes the Distribution Date which are assessed upon
the value of real or personal property owned, leased, rented or used by the Olin
Affiliated Group, including, but not limited to, real and personal property
taxes, use taxes, value added taxes or other
ad valorem taxes ("Personal and Real Property Taxes), shall be apportioned
between and among Olin and Primex as follows:
(1) the Personal and Real Property Taxes allocable to that portion of the
Tax period ending on the Distribution Date shall be the liability of Olin; and
(2) the Personal and Real Property Taxes allocable to that portion of the
tax period which begins after the Distribution Date shall be the liability of
Primex, but only to the extent such taxes are attributable to the assets of the
Primex Businesses; otherwise, such taxes shall be the liability of Olin.
(ii) The party receiving the bill from the Taxing Authority shall timely
pay the liability, and request payment from the other party of the apportioned
amount under this Section 3.01(c), and shall cause the records of the Tax
Authority assessing such Taxes to properly reflect the change in ownership
affecting the assessed property.
(iii) Primex shall pay, on a timely basis, all Personal and Real Property
Taxes of the Primex Affiliated Group for all tax periods beginning after the
(d) Refunds. Each party shall be entitled to retain or be paid all
refunds of tax received, whether in the form of payment, credit or otherwise,
from any Taxing Authority with respect to any Tax Return filed or to be filed by
such party in accordance with Sections 2.02 and 2.03 hereof.
SECTION 3.02. Section 355 Tax. If there is a determination (within
the meaning of Section 1313 of the Code) that the Distribution fails to qualify
as a tax-free spin-off under Section 355 of the Code, Primex shall be
responsible for 20 percent, and Olin shall be responsible for 80 percent, of
Taxes (including any interest or penalties with respect thereto) imposed on Olin
as a result of such determination unless such failure shall arise as a result of
an action, other than any action taken consistent with the opinion of counsel
obtained by Olin in connection with the distribution contemplated by the
Distribution Agreement, taken after the Distribution Date by Olin (or any member
of the Olin Affiliated Group) or by Primex (or any member of the Primex
Affiliated Group), in which case Olin or Primex, as the case may be, shall be
responsible for the full amount of such Taxes regardless of whether an opinion
of counsel that such action would not cause such failure to qualify was
obtained. Primex's obligation under this Section 3.02 shall be
effected by its payment of the appropriate amounts to Olin no later than the due
date for payment of such Taxes to the relevant Taxing Authority.
SECTION 3.03 - Time and Form of Payment. (a) Payments under this
Agreement shall be due on the date provided for in this Agreement without any
additional notification by the party to whom such payments are due. If a due
date is not provided in this Agreement, payments under this Agreement shall be
made no later than thirty (30) days after the date written demand therefor (with
a reasonably detailed explanation for the basis of the claim) is received by the
party obligated to make such payment.
(b) If either Primex or Olin shall default on its payment obligations under
this Agreement (including as a result of a voluntary bankruptcy), upon 90 days'
notice (except that in the case of bankruptcy no such notice shall be required)
the party not in default shall have the right to offset its payment obligations
under this Agreement against the defaulting party's payment obligations to it.
The failure or refusal to pay an amount when due under this Agreement shall not
constitute a default if the amount of, or liability for, such payment is being
disputed pursuant to Section 6.02 of Article VI.
(c) Any portion of a payment not in dispute shall be paid notwithstanding
the dispute with respect to the remaining portion of such payment. Acceptance of
such partial payment (or any other partial payment) will not constitute a waiver
of the right to dispute resolution under Section 6.02 of Article VI.
SECTION 3.04. Interest on Unpaid Amounts. In the event that any party
fails to pay any amount owed pursuant to this Agreement within ten (10) days
after the date when due, interest shall accrue at the rate applicable to
underpayments of the tax as provided for in the Code from the due date until
such amounts are fully paid (regardless of the existence of any dispute with
respect to the amount of, or liability for, such payment).
SECTION 3.05. Treatment of Payments. The parties agree that for all tax
and financial accounting purposes any payments made pursuant to this Agreement
to one party by another party shall be treated as nontaxable adjustments to the
capital contribution of cash made by Olin to Primex in connection with the
Distribution (including treating such payments as distributions from Primex to
Olin immediately prior to the Distribution), unless otherwise required by law.
INDEMNITY: COOPERATION AND EXCHANGE OF INFORMATION
SECTION 4.01 Indemnity. (a) Whenever a party hereto (an "Indemnitee")
becomes aware of the existence of an issue which relates to any Tax or liability
of the other party or any member of its Affiliated Group that may arise under
this Agreement (an "Indemnity Issue"), the Indemnitee shall promptly notify the
other party (the "Indemnitor") of the Indemnity Issue.
(b) Olin and Primex will indemnify each other for any liabilities resulting
from any breach of their respective representation made to Cravath, Swaine &
Moore in connection with its opinion. Neither Olin nor Primex will indemnify any
holder of Olin Common Stock who receives shares in the Distribution for any Tax
(c) Olin shall have full responsibility and discretion in handling,
settling or contesting any Tax controversy, involving a Tax Return for which it
has filing responsibility pursuant to Sections 2.02 and 2.03 hereof. Primex
shall have full responsibility and discretion in handling, settling or
contesting any Tax controversy involving a Tax Return for which it has filing
responsibility pursuant to Section 2.03 hereof. Any costs incurred in handling,
settling or contesting any Tax controversy shall be borne by the party having
full responsibility and discretion thereof.
(d) In the event that a notice of deficiency is received by Olin from the
IRS or any Taxing Authority and such notice relates in whole or in part to a Tax
for which Primex could be liable to Olin pursuant to Section 3.02 hereof then:
(i) Olin shall notify Primex of the notice of deficiency and the potential
Primex Tax exposure. Olin shall determine in its sole discretion the nature of
all action, if any, to be taken to contest such notice of deficiency including
(a) whether any action to contest such notice of deficiency shall initially be
by way of judicial or administrative proceedings, or both, (b) whether any such
proposed adjustment shall be contested by resisting payment thereof or by paying
the same and seeking a refund thereof, and (c) if Olin shall undertake judicial
action with respect to such notice of deficiency, the court or other judicial
body before which such action shall be commenced.
(ii) Olin shall provide Primex copies of written correspondence from the
IRS or any Taxing Authority regarding any notice of deficiency which relates to
such Tax and shall keep Primex informed of the progress of the contest as it
relates to Primex's Tax exposure. Olin shall determine, if Primex and its
representatives, at Primex expense, shall be entitled to participate in (1) all
conferences, meetings, or proceedings with any Taxing Authority, the subject
matter of which is or includes such Tax and (2) all appearances before any
court, the subject matter of which includes such Tax. The right to participate
referred to in this Section 4.01 (c) (ii) shall include the submission and
content of documentation, protest, memoranda of fact and law and briefs and the
selection of witnesses.
SECTION 4.02. Cooperation and Exchange of Information. (a) Primex
and Olin shall each cooperate (and shall cause each member of the Olin
Affiliated Group and the Primex Affiliated Group to cooperate) fully at such
time and to the extent reasonably requested by the other party in connection
with the preparation and filing of any Tax Return or claim for refund, or the
conduct of any audit, dispute, proceeding, suit or action concerning any issues
or other matters considered in this Agreement. Such cooperation shall include,
without limitation, the following: (i) forwarding promptly copies of appropriate
notices and forms or other communications received from any Taxing Authority
(including any IRS revenue agent's report or similar report, notice of proposed
adjustment, or notice of deficiency) or sent to any Taxing Authority or any
other administrative, judicial or other governmental authority that relate to an
Indemnity Issue, (ii) the retention and provision on demand of Tax Returns,
books, records (including those concerning ownership and tax basis of property
which either party may possess), documentation or other information relating to
the Tax Returns, including accompanying schedules, related workpapers, and
documents relating to rulings or other determinations by Taxing Authorities,
until the expiration of the applicable statute of limitations (giving effect to
any extension, waiver or mitigation thereof) subject to the provisions of
Section 4.02 (e) hereof; (iii) the provision of additional information and an
explanation of material provided under clause (i) of Section 4.02 (a), provided
such information or explanation is necessary or reasonably helpful with the
foregoing; (iv) the execution of any document
that may be necessary or reasonably helpful in connection with the filing of a
Tax Return by Olin or Primex or any member of their respective Affiliated
Groups, or in connection with any audit, dispute proceeding, suit or action; and
(v) the use of the parties' best efforts to obtain any documentation from a
governmental authority or a third party that may be necessary or reasonably
helpful in connection with any of the foregoing.
(b) Both parties and the members of their respective Affiliated Groups
shall use reasonable efforts to keep each other advised as to the status of Tax
audits or litigation involving an Indemnity Issue and cooperate in a defense
with respect to a Indemnity Issue in any Tax controversy.
(c) Each party shall make its employees and facilities available on a
reasonable and mutually convenient basis in connection with any of the foregoing
(d) If either party fails to provide any information requested pursuant to
Section 4.02 hereof within a reasonable period, as determined in good faith by
the party requesting the information, then the requesting party shall have the
right to engage a public accounting firm to gather such information, provided
that thirty (30) days prior written notice is given to the unresponsive party.
If the unresponsive party fails to provide the requested information within
thirty (30) days of receipt of such notice, then such unresponsive party shall
permit the requesting party's public accounting firm full access to all
appropriate records or other information as reasonably necessary, and shall
reimburse the requesting party or pay directly all cost connected with the
requesting party's engagement of the public accounting firm.
(e) Upon the expiration of any statute of limitations, the documentation
of Olin or Primex or any member of their respective Affiliated Groups, including
without limitation, books, records, Tax Returns and all supporting schedules and
information relating thereto, shall not be destroyed or disposed of unless (i)
the party proposing such destruction or disposal provides sixty (60) days prior
written notice to the other party describing in reasonable detail the
documentation to be destroyed or disposed of, and (ii) the recipient of such
notice agrees in writing to such destruction or disposal. If the recipient of
such notice objects, then the party proposing the destruction or disposal shall
promptly deliver such materials to the objecting party at the expense of the
SECTION 4.03. If either Olin or Primex, or a member of their respective
Affiliated Groups, supplies information to another party upon such party's
request, and an officer of the requesting party intends to sign a statement or
other document under penalties of perjury in reliance upon the accuracy of such
information, then at the request of the party that received the information, a
duly authorized officer of the party supplying such information shall certify,
to the best of such party's knowledge, the accuracy and completeness of the
information so supplied.
SECTION 4.04. Indemnification for Tax Attributes. Nothing in this
Agreement shall be construed as a guarantee of the existence or amount of any
loss, credit, carryforward, basis or other tax attribute, whether past, present
or future, of Olin or Primex and any member of their respective Affiliated
Groups, or an indemnity against the reduction or elimination of any such
attribute by any Taxing Authority.
WARRANTIES AND REPRESENTATIONS
SECTION 5.01. Warranties and Representations Relating to Actions of Olin
and Primex. As an inducement to enter into this Agreement, Olin and any member
of the Olin Affiliated Group and Primex and any member of the Primex Affiliated
Group warrant and represent to the other party that they shall comply with and
not take any action that is inconsistent with the representations and statements
made to Cravath, Swaine & Moore in connection with such firm's rendering an
opinion to Olin and Primex as to certain tax aspects of the Distribution.
SECTION 5.02. Warranties and Representations Relating to Actions of
Primex. Primex, its successors, and each member of the Primex Affiliated
Group, hereby warrants and represents to Olin that it has no present plan or
(i) to liquidate or merge into any corporation; and
(ii) to sell, exchange, distribute or otherwise dispose of Primex assets
or assets of any member of the Primex Affiliated Group other than in the
ordinary course of business.
SECTION 6.01. Notice. Any payment, notice or communication required or
permitted to be given under this Agreement shall be in writing (including
facsimile) and mailed, faxed or delivered to the parties at the following
addresses (or at such other address as one party may specify by notice to the
If to Olin to:
501 Merritt 7
PO Box 4500
Norwalk, Ct. 06856-4500
Attention: Vice President Taxes and Risk Management
If to Primex:
Primex Technologies, Inc.
10101 Ninth Street North
St. Petersburg, Florida 33716-3807
Attention: Chief Financial Officer
Notification of a change of address shall be given by either party to the other
as provided in Section 6.01 hereof. All such notices and communications shall be
effective (i) when received, if mailed or delivered, or (ii) when faxed
confirmed by fax answerback.
SECTION 6.02. Resolution of Disputes. The calculation and determination
of the payment of Tax and the allocation thereof under Section 3.01 (Allocation
of Tax Liabilities) and Section 3.02 (Section 355 Tax), shall be made or
verified by the party required to make such payment (the "Payor"). If the party
to receive such payment (the "Payee") shall have any dispute concerning such
Tax, it may request in writing that the Payor cause a "Big Six" certified public
accounting firm (the "Accounting Firm") to review such Tax to determine and
confirm in writing that such Tax is more likely than not
correct (a "Confirmation"). The Accounting Firm shall be mutually acceptable to
Olin and Primex and may not be the auditor of, or primary tax advisor for,
either Olin or Primex in the year in which such confirmation is to be made or
with respect to the taxable period subject to such confirmation. If a
confirmation is issued by the Accounting Firm, such Tax shall be binding upon
the parties. If the Accounting Firm is unable to issue a Confirmation, the Payor
shall amend such Tax such that the Accounting Firm can issue a Confirmation in
respect of the amended Tax Allocation Obligation. The Payee shall be responsible
for the fees and disbursements of the Accounting Firm, unless the amounts of the
payments excluding interest as recalculated differs from the amount originally
calculated by the Payor excluding interest, if any, by more than 10% of such
originally calculated amount, in which case the Payor shall be responsible for
such fees and disbursements.
The Accounting Firm shall treat all Tax Returns as confidential, and shall
not reveal any information contained in, or any part of, the tax returns of one
party to the other without the consent of the party to whom the Tax Returns
SECTION 6.03. Governing Law. This Agreement shall be governed by the
laws applicable to contracts entered into and to be fully performed within the
State of Connecticut by residents thereof.
SECTION 6.04 Binding Effect; Successors This Agreement shall be binding
upon the parties hereto and shall inure to the benefit of and be binding upon
any of their successors or assigns.
SECTION 6.05 Entire Agreement; Assignment This Agreement embodies the
entire understanding between the parties relating to its subject matter and
supersedes and terminates all prior agreements and understanding among the
parties with respect to such matter. Any and all prior correspondence,
conversations and memoranda with respect to such subject matter are merged
herein and shall effect hereon. No promises, covenants or representations of any
kind, other than those expressly stated herein, have been made to induce any
party to enter into this Agreement. This Agreement shall not be modified or
terminated except by 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.
SECTION 6.06 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.
SECTION 6.07 Severability If any provision of this Agreement or the
application of any such provision to any person or circumstances shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
SECTION 6.08 Headings Headings of sections in this Agreement are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
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
Primex Technologies Inc.