{"id":43743,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/tax-allocation-agreement-cmgi-inc-and-altavista-co.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"tax-allocation-agreement-cmgi-inc-and-altavista-co","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/tax-allocation-agreement-cmgi-inc-and-altavista-co.html","title":{"rendered":"Tax Allocation Agreement &#8211; CMGI Inc. and AltaVista Co."},"content":{"rendered":"<pre>\n                            TAX ALLOCATION AGREEMENT\n                                        \n     TAX ALLOCATION AGREEMENT (the \"Agreement\") is made as of March __, 2000, by\nand among CMGI, Inc., a Delaware corporation (\"Parent\"), and AltaVista Company,\na Delaware corporation (\"Sub\").\n\n     WHEREAS, prior to the Closing Date (as defined below), Sub was a member of\nthe Parent Group (as defined below);\n\n     WHEREAS, Parent will cause to be sold to the former stockholders of Raging\nBull, Inc. a portion of the common stock of Sub pursuant to an Agreement and\nPlan of Merger dated November 22, 1999 by and between Sub, Matador Acquisition\nCorporation and Raging Bull, Inc. and the Stockholders who are signatory\nthereto.\n\n     WHEREAS, the parties desire to provide for the allocation of\nresponsibilities, liabilities and benefits in respect of Taxes (as defined\nbelow).\n\n     NOW, THEREFORE, the parties agree as follows:\n\n\n                                   ARTICLE I\n\n                                  DEFINITIONS\n\n     \"Closing Date\" means the close of business on the date on which Sub ceases\nto be a member of the Parent Group.\n\n     \"Code\" means the Internal Revenue Code of 1986, as amended.\n\n     \"Consolidated Returns\" means any consolidated, combined or unitary Tax\nReturns required to be filed by Parent with respect to United States federal,\nstate or local Taxes imposed or based on net income, net worth or gross\nreceipts.\n\n     \"Parent Group\" means an affiliated group (within the meaning of Section\n1504(a) of the Code and any corresponding provisions of state, local or foreign\ntax law) having Parent as its common parent.\n\n     \"Parent Subsidiary\" or \"Parent Subsidiaries\" mean each corporation of which\nParent owns, directly or indirectly, capital stock representing more than 50% of\nthe outstanding voting stock.  Parent Subsidiary or Parent Subsidiaries shall\nnot include \n\n                                       1\n\n \nSub or any Sub Subsidiary.\n\n     \"Returns\" means all returns, reports and information statements (including\nall exhibits and schedules thereto) required to be filed with a taxing authority\nwith respect to any Taxes.\n\n     \"Sub Subsidiary\" or \"Sub Subsidiaries\" means each corporation of which Sub\nowns on the Closing Date or thereafter, directly or indirectly, capital stock\nrepresenting more than 50% of the outstanding voting stock.\n\n     \"Sub Taxes\" means United States federal, state and local Taxes imposed or\nbased on net income, net worth or gross receipts (including interest and\npenalties relating thereto) attributable to the operations of Sub and Sub\nSubsidiaries.\n\n     \"Taxes\" means all federal, state, local and foreign income, profits,\nfranchise, sales, use, occupation, property, severance, excise, payroll,\nwithholding and any other taxes (including interest and penalties thereon).\n\n                                  ARTICLE II\n\n                                REPRESENTATIONS\n\n     Section 2.1  Parent represents and warrants to the Sub that all\nConsolidated Returns for any taxable year or Tax period ending on or before the\nClosing Date have been or shall be timely filed in accordance with all\napplicable laws, and all Taxes shown as due on such Consolidated Returns have\nbeen or shall be paid, and any proposed deficiency asserted by any taxing\nauthority with respect thereto has been paid or properly protested.\n\n     Section 2.2  Sub represents and warrants to Parent that all Tax Returns for\nany taxable year or Tax period ending on or before the Closing Date with respect\nto Sub and Sub Subsidiaries, excluding any Consolidated Returns, have been or\nshall be timely filed in accordance with all applicable laws, and all Taxes\nshown as due on such Returns have been or shall be paid, and any proposed\ndeficiency asserted by any taxing authority with respect thereto has been paid\nor properly protested.\n\n                                  ARTICLE III\n\n                                  TAX MATTERS\n\n     Section 3.1  Parent shall include (to the extent required by \n\n                                       2\n\n \nlaw) in Consolidated Returns the taxable income or loss and all other Tax items\nof Sub for the taxable years or Tax periods ending on or before the Closing\nDate. For the period commencing on August 1 immediately preceding the Closing\nDate and ending on the Closing Date, the following arrangement shall apply to\nensure that the correct\n\n                                       3\n\n \namount of Sub Taxes due in respect of the Consolidated Returns is billed to and\npaid by Sub:\n\n     (a) An estimate of the amount of such Sub Taxes due, which estimate shall\nbe determined in good faith and shall reflect amounts, if any, previously paid\nby Sub with respect to Sub Taxes through the Closing Date, shall be billed to\nSub and paid to Parent prior to the Closing Date.\n\n     (b) Upon filing of the Consolidated Returns for the taxable year which\nshall include the period commencing on August 1 and ending on the Closing Date,\neither\n\n         (c) The unpaid amount, if any, of Sub Taxes due in respect of such\nConsolidated Returns shall be billed to Sub, and Sub or its designee shall pay\nsuch amount to Parent within 30 days after receiving written notice from Parent\nof such amount, or\n\n         (d) If the amount of such Sub Taxes paid to Parent, if any, exceeds the\namount of the Sub Taxes due in respect of such Consolidated Returns, Parent or\nits designee shall pay such excess to Sub or its designee within 30 days after\nfiling the Consolidated Returns for the taxable year which includes the Closing\nDate.\n\n     (e) Sub Taxes due in respect of Consolidated Returns shall be determined in\naccordance with (i) the method set forth in Section 1552(a)(1) of the Code and\nU.S. Federal Income Tax Regulation Sections 1.1552-1(a)(1) and 1.1552-1(b), (ii)\none of the three methods of allocation under Section 1.1502-33(d) (sometimes\nreferred to as the three \"Complementary Methods\") and (iii) the practices of the\nparties for Tax periods ended prior to the Closing Date.\n\n     (f) Except as provided in Section 3.7 and the last sentence of this\nsubsection (d), no party shall have any obligation to make any payments to\nanother party for the use of such other party's Tax attributes pursuant to U.S.\nFederal Income Tax Regulation Section 1.1502-33(d) or otherwise.\n\n         Section 3.2  Subject to the provisions of Section 3.1, Parent shall be\nliable for any and all Sub Taxes in respect of all Consolidated Returns due or\npayable by Parent for any taxable year or Tax period ending on or before the\nClosing Date.\n\n         Section 3.3  Subject to the provisions of Section 3.1, Sub and Sub\nSubsidiaries shall be liable for (i) any and all Sub Taxes in respect of\n\n                                       4\n\n \nConsolidated Returns due or payable to Parent by Sub under Section 3.1 and (ii)\nany and all Taxes (other than Sub Taxes in respect of Consolidated Returns) due\nor payable by Sub or Sub Subsidiaries for any taxable year or Tax period\n(whether ending before, on or after the Closing Date).\n\n         Section 3.4 Any Taxes (other than ad valorem, personal property and\nreal property Taxes) for any Tax period beginning before the Closing Date and\nending after the Closing Date shall be apportioned between Sub as a member of\nthe Parent Group and Sub as a separate company which is not a member of the\nParent Group, respectively, based on the actual operations of Sub and\/or Sub\nSubsidiaries, as the case may be, during the portion of such period ending on\nthe Closing Date, and the portion of such period beginning on the day following\nthe Closing Date, and each portion of such period shall be deemed to be a Tax\nperiod subject to the provisions of Sections 3.2 and 3.3. In the case of ad\nvalorem, personal property and real property Taxes, such apportionment shall be\non a per diem basis.\n\n         Section 3.5 Sub shall file or cause to be filed all required state,\nlocal and foreign non-Consolidated Returns with respect to Sub and Sub\nSubsidiaries for the Tax period beginning before the Closing Date and ending\nafter the Closing Date, and any such unfiled Tax Returns for periods ending on\nor before the Closing Date, and Sub shall pay or cause its Subsidiaries to pay\nall Taxes shown as due on any such Tax Returns.\n\n         Section 3.6 Any refunds or credits of Sub Taxes in respect of\nConsolidated Returns for any taxable year or Tax period ending on or before the\nClosing Date shall be for the account of Parent and Parent Subsidiaries. Any\nrefunds or credits of Taxes (other than Sub Taxes in respect of Consolidated\nReturns) paid by Sub or Sub Subsidiaries for any taxable year or Tax period\n(whether ending before, on or after the Closing Date) shall be for the account\nof Sub and its Subsidiaries.\n\n         Section 3.7\n\n     (a) Parent shall promptly pay to Sub the amount of any incremental Tax\nsavings generated by (i) a deduction, credit or exclusion that (A) is actually\nrealized by the Parent Group with respect to Taxes for a taxable period ending\non or before the Closing Date and (B) relates to or is based on an item that is\nthe basis for a similar deduction, credit or exclusion taken on a Return with\nrespect to Taxes of Sub or Sub Subsidiaries for a taxable period ending after\nthe Closing Date that is denied, disallowed, forfeited or accelerated prior to\nthe Closing Date or (ii) a reduction in the amount of any gross income or\nrevenue that (A) is actually realized by the Parent Group with respect to Taxes\nfor a taxable period ending on or before \n\n                                       5\n\n \nthe Closing Date and (B) relates to, or is based on, a similar item of gross\nincome or revenue that Sub or Sub Subsidiaries are required to include on a\nReturn or otherwise required to include in its computation of taxable income as\na result of an audit, other administrative proceeding or otherwise with respect\nto Taxes for a taxable period ending after the Closing Date.\n\n     (b) Sub shall promptly pay to Parent the amount of any incremental Tax\nsavings generated by (i) a deduction, credit or exclusion that (A) is actually\nrealized by the Sub or Sub Subsidiaries with respect to Taxes for a taxable\nperiod ending after the Closing Date and (B) relates to or is based on an item\nthat is the basis for a similar deduction, credit or exclusion taken on a\nConsolidated Return with respect to Taxes for a taxable period ending on or\nbefore the Closing Date that is denied, disallowed, forfeited or deferred until\nafter the Closing Date or (ii) a reduction in the amount of any gross income or\nrevenue that (A) is actually realized by Sub or Sub Subsidiaries with respect to\nTaxes for a taxable period ending after the Closing Date and (B) relates to, or\nis based on, a similar item of gross income or revenue that the Parent Group is\nrequired to include on a Consolidated Return or otherwise required to include in\nits computation of taxable income as a result of an audit, other administrative\nproceeding or otherwise.\n\n         Section 3.8 Parent or Parent designee shall exercise, at Parent's\nexpense, complete control of the audit, appeal, litigation and\/or settlement of\nany issues raised in any official inquiry, examination or proceeding that could\nresult in an official determination with respect to Taxes due or payable by the\nParent Group, Parent Subsidiaries, Sub or Sub Subsidiaries for any taxable year\nor Tax period (including a period deemed to be a Tax period under Section 3.4)\nending on or before the Closing Date, except in respect of Taxes for which Sub\nor Sub Subsidiaries are responsible in connection with non-Consolidated Returns\nrequired to be filed by Sub or Sub Subsidiaries, in which case Sub shall\nexercise, at Sub's expense, complete control of the audit, appeal, litigation\nand\/or settlement. The parties shall cooperate in any such inquiry, examination\nor proceeding.\n\n         Section 3.9 Sub irrevocably designates Parent (and shall cause each Sub\nSubsidiary to irrevocably designate Parent) as its agent and attorney-in-fact\n(and shall execute any necessary powers of attorney) for the purpose of taking\nany and all actions necessary or incidental to the filing of Consolidated Tax\nReturns. Parent and Sub will each furnish to the other any and all information\nwhich the other may reasonably request in order to carry out the provisions of\nthis Agreement to determine the amount of any Tax liability.\n\n                                  ARTICLE IV\n\n                                       6\n\n \n                                INDEMNIFICATION\n\n         Section 4.1\n\n     (a) Except to the extent of any due and unpaid obligations of Sub with\nrespect to its payment obligations under Article III, Parent (i) shall indemnify\nand hold harmless Sub against the amount of any and all liability, loss, expense\nor damage Sub may suffer or incur as a result of any or all claims, demands,\ncosts or expenses (including, without limitation, attorneys' and accountants'\nfees), interest, penalties or judgments made against it arising from or incurred\nin relation to all Taxes in respect of all Consolidated Returns and (ii) shall\nmake any payment, remove any lien and take any action reasonably necessary to\nprevent Sub from incurring such liabilities, losses, expenses or damages.\n\n     (b) Except to the extent of any due and unpaid obligations of Parent with\nrespect to its payment obligations under Article III, Sub shall indemnify and\nhold harmless Parent and each Parent Subsidiary against the amount of any and\nall liability, loss, expense or damage any such company may suffer or incur as a\nresult of any or all claims, demands, costs or expenses (including, without\nlimitation, attorneys' and accountants' fees), interest, penalties or judgments\nmade against it arising from or incurred in relation to (i) any failure of Sub\nto pay any amount to Parent with respect to Sub's obligations under Article III\nand (ii) any and all Taxes (other than Taxes in respect of Consolidated Returns)\ndue or payable by Sub or Sub Subsidiaries for any taxable year or Tax period\nbeginning before, on or after the Closing Date.\n\n     Section 4.2  Payments under this Agreement shall be due no later than 30\ndays after the date written demand therefor, with a reasonably detailed\nexplanation for the basis of the claim, is actually received by Parent or Sub.\n\n         Section 4.3  In the event that any party fails to pay any amount owed\npursuant to this Agreement within 10 days after the date when such amount is\ndue, interest shall accrue on the unpaid amount at the rate applicable to\nunderpayments of the Tax with respect to which such amount relates from the due\ndate until such amounts are fully paid.\n\n                                   ARTICLE V\n\n                                 MISCELLANEOUS\n\n         Section 5.1 For all purposes of this Agreement, Sub shall be the agent\nfor each Sub Subsidiary, with full power to give any consent and\/or \n\n                                       7\n\n \nexercise any right provided for herein on behalf of such Sub Subsidiary.\n\n         Section 5.2  Any dispute concerning the calculation or basis of\ndetermination of any payment provided for hereunder shall be resolved by a\nnationally recognized law firm or \"big five\" accounting firm, selected jointly\nby Parent and Sub, whose judgment shall be conclusive and binding upon the\nparties in the absence of manifest error.  The fees and other expenses of such\nlaw or accounting firm shall be paid 50% by Parent and 50% by Sub.\n\n         Section 5.3 This Agreement shall be binding upon the parties hereto and\nshall inure to the benefit of and be binding upon any of their successors or\nassigns; provided, however, that none of Parent, Sub or any of the Sub\nSubsidiaries may assign or delegate any of its obligations hereunder without the\nconsent of Sub (in the case of a proposed assignment or delegation by Parent) or\nParent (in the case of a proposed assignment or delegation by Sub or any of the\nSub Subsidiaries).\n\n         Section 5.4 This Agreement embodies the entire understanding between\nthe parties relating to its subject matter and supersedes and terminates all\nprior agreements and understandings among the parties with respect to such\nsubject matter. Any and all prior correspondence, conversations and memoranda\nwith respect to such subject matter are merged herein and shall be without\neffect hereon. No promises, covenants or representations of any kind, other than\nthose expressly stated herein, have been made to induce any party to enter into\nthis Agreement. This Agreement shall not be modified or terminated except by a\nwriting duly signed by each of the parties (or, in the case of a Sub Subsidiary,\nby Sub acting as its agent on its behalf), and no waiver of any provisions of\nthis Agreement shall be effective unless in a writing duly signed by the party\nsought to be bound (or, in the case of a Sub Subsidiary, by Sub acting as its\nagent on its behalf).\n\n         Section 5.5 Any payment, notice or communication required or permitted\nto be given under this Agreement shall be in writing and may be delivered by\nhand, first-class mail, facsimile (if confirmed) or overnight courier:\n\n     If to Parent, to:\n\n     100 Brickstone Square\n     Andover, Massachusetts 01810\n     Attention:  Mr. Don Combs, Vice President for Finance\n\n     If to Sub on its own behalf, or as agent for the Sub Subsidiaries, to:\n\n                                       8\n\n \n     529 Bryant Street\n     Palo Alto, California  94301\n     Attention: General Counsel\n\nor to such other person or address as a party shall furnish in writing to all\nthe other parties.  All such notices and communications shall be effective  (i)\nwhen received, if delivered by hand, first-class mail or overnight courier, or\n(ii) when transmission is confirmed, if delivered by facsimile.\n\n         Section 5.6 This Agreement may be executed in two or more counterparts,\neach of which shall be deemed to be an original, but all of which together shall\nconstitute one and the same instrument. This Agreement may be executed by\nfacsimile signatures.\n\n         Section 5.7 This Agreement shall be governed by the laws applicable to\ncontracts entered into and to be fully performed within the State of Delaware by\nresidents thereof.\n\n         Section 5.8 Each of Parent, Sub and any of the Sub Subsidiaries agree\nthat, in the event of any legal suit or proceeding arising in connection with\nthis Agreement and the obligations of the parties hereunder, it shall submit to\nthe jurisdiction of the United States District Court of Delaware and further\nagrees to venue in such court.\n\n                                       9\n\n \n          IN WITNESS WHEREOF, each of the parties has caused this Agreement to\nbe executed by its respective duly authorized officer as of the date first set\nforth above.\n\n\n                              CMGI, INC.\n\n\n\n                              By\n                                 Name:\n                                      Title:\n\n\n                              ALTAVISTA COMPANY\n\n\n\n                              By\n                                 Name:     Rodney W. Schrock\n                                      Title:    President and Chief\n                              Executive Officer\n\n                                       10\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7128],"corporate_contracts_industries":[9417],"corporate_contracts_types":[9622,9628],"class_list":["post-43743","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cmgi-inc","corporate_contracts_industries-financial__holding","corporate_contracts_types-planning","corporate_contracts_types-planning__separation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43743","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43743"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43743"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43743"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43743"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}