Exhibit
10.44
TAX ALLOCATION AGREEMENT
THIS AGREEMENT
is entered into as May 7, 2009 by and among Ener1, Inc., a Florida
corporation (“ENER1”) and EnerDel, Inc., EnerFuel, Inc.
NanoEner, Inc., and Ener1 Battery, Inc. each a Florida corporation,
except EnerDel, Inc., a Delaware corporation (each an “Ener1
Sub” and in the aggregate the “Ener1
Subs”).
WITNESSETH:
WHEREAS, ENER1
is the common parent corporation of an affiliated group of
corporations (the “ENER1 Affiliated Group”) within the
meaning of section 1504(a) of the Internal Revenue Code of 1986, as
amended (the “Code”), and each Ener1 Sub is a
corporation wholly owned by ENER1 and therefore a member of the
ENER1 Affiliated Group; and
WHEREAS, ENER1
and each Ener1 Sub deem it appropriate to define the method by
which the federal income tax, including for all purposes of this
Agreement, the alternative minimum tax, and certain state and local
tax liabilities of the ENER1 Affiliated Group shall be allocated
between the parties and the manner in which such allocated
liability shall be paid.
NOW, THEREFORE,
in consideration of the mutual premises and covenants hereinafter
set forth, the parties hereto agree as follows:
1.
Definitions. The following terms as used in this Agreement shall
have the meanings set forth below:
(a)
“Additional Amount” shall mean the amount
determined under Section 3 hereof.
(b)
“Consolidated Return” shall mean a consolidated federal
income tax return filed pursuant to section 1501 of the
Code.
(c) “Consolidated
Tax Liability” shall mean the consolidated federal income tax
liability, including for all purposes of this Agreement,
alternative minimum tax liability, of the ENER1 Affiliated Group
for any taxable year for which the ENER1 Affiliated Group files a
Consolidated Return.
(d)
“IRS” shall mean the Internal Revenue
Service.
(e)
“Member” shall mean each includible member of the ENER1
Affiliated Group.
(f)
“ENER1 Affiliated Group” shall mean the affiliated
group of corporations within the meaning of section 1504(a) of the
Code of which ENER1 is the common parent.
(g)
“Regulations” shall mean the Treasury regulations as in
effect from time to time.
(h)
“Separate Return Tax Liability” shall mean the federal
income tax liability, including for all purposes of this Agreement,
alternative minimum tax liability, of a Member computed as if it
had filed a separate federal income tax return for the applicable
taxable year with the modifications set forth in section
1.1552-1(a)(2)(ii) of the Regulations.
(i)
“Separate Tax Liability” shall mean the amount owed by
a Member under Section 2(a) hereof.
(j)
“Tax Sharing Receivable” shall mean the amount owned to
a Member pursuant to Section 2(a) hereof.
2.
Separate Tax Liability.
(a)
If a Consolidated Return is filed by the ENER1 Affiliated Group for
any taxable year, the Separate Tax Liability of each Member for
such taxable year shall, if a positive number, be the sum of (i)
the amount determined for such Member pursuant to paragraph (b)
hereof, plus or minus, as the case may be, (ii) any increase or
reduction in the Member's tentative Separate Tax Liability required
by paragraph (c) hereof. To the extent an allocation to a Member
under clause (ii) of paragraph (c) hereof reduces a Member's
tentative Separate Tax Liability to an amount less than zero, such
negative amount shall be referred to herein as a “Tax Sharing
Receivable.”
(b)
Each Member's tentative Separate Tax Liability shall be an amount
equal to that portion of the Consolidated Tax Liability for such
taxable year that the Member's Separate Return Tax Liability for
such taxable year bears to the sum of the Separate Return Tax
Liabilities of all Members for such taxable year; provided,
however, that such amount shall not exceed the Consolidated Tax
Liability for such taxable year.
(c)
Adjustments for Additional Amount. If an Additional Amount is
determined with respect to a Member for a Consolidated Return
taxable year, then (i) the tentative Separate Tax Liability of that
Member, as determined pursuant to paragraph (b), shall be increased
by such Additional Amount; and (ii) the Separate Tax Liability of
each of those Members whose tax attributes are absorbed shall be
reduced by a pro rata portion of the Additional Amount allocated to
such Member, which allocation shall be made in a manner that
reasonably reflects the absorption of the tax attributes. This
paragraph (c) and Section 3 hereof are intended to allocate
Additional Amounts of Separate Return Tax Liability in accordance
with the percentage method of Reg. (S)1.1502-33(d)(3) (using 100%
for each Member) and shall be interpreted to comply in all material
respects with that method.
3.
Additional Amount. An “Additional Amount” exists with
respect to a Member if, for any Consolidated Return taxable year,
that Member's Separate Return Tax Liability exceeds the tentative
Separate Tax Liability of that Member determined pursuant to
Section 2(b).
4.
Payments. For each taxable year with respect to which ENER1 files,
or it is reasonably anticipated that ENER1 will file, a
Consolidated Return which includes Ener1, payment of the Separate
Tax Liability or Tax Sharing Receivable with respect to such
taxable year shall be made as follows:
(a)
On or before the 15th day of the fourth month of such taxable year,
ENER1 shall estimate the Separate Tax Liability or Tax Sharing
Receivable of each Member for such taxable year.
(b)
Each Ener1 Sub shall pay to ENER1 or ENER1 shall pay to each Ener1
sub, as the case may be, on or before each of the due dates for
ENER1 to make payment of estimates of its federal income taxes for
such taxable year one-fourth of the amount estimated pursuant to
paragraph (a) above (the “Estimated Amount”). If, after
paying any such installment of the Estimated Amount, ENER1 and
Ener1 Subs make a new estimate, the amount of each remaining
installment (if any) shall be the amount which would have been
payable if the new estimate had been made when the first estimate
for the taxable year was
