EXHIBIT 10.3
TAX SHARING
AGREEMENT
THIS AGREEMENT, effective as of
December 19, 1994, by and among Perry Capital Corp.
(“Parent”) and Florists’ Transworld Delivery,
Inc. (“Subsidiary”).
WHEREAS, Parent is the common parent
of an affiliated group (the “Group”) of domestic
corporations (as such terms are defined in Section 1504 (a) of the
Internal Revenue Code of 1986, as amended) (the
“Code”);
WHEREAS, Subsidiary is presently a
subsidiary of Parent and a member of the Group; and
WHEREAS, Parent and Subsidiary wish
to allocate and settle between each other in an equitable manner
the consolidated federal income tax liability of the
Group.
NOW, THEREFORE, in consideration of
the mutual covenants contained herein, the parties agree as
follows:
1. For each taxable year, Parent
shall file, and shall cause all includable members of the Group to
join in the filing of, consolidated federal income tax returns.
Parent and Subsidiary shall execute and file such consents,
elections and other documents as Parent reasonably believes may be
required or appropriate for the filing of such returns.
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2. (a) Except as otherwise provided
herein, within 15 days of each of Parent’s estimated federal
income tax payment dates and the March 15 extension date and within
30 days of the filing of the Group’s federal income tax
return, Parent and Subsidiary shall settle and pay, where
appropriate, any amounts that may be allocated under this
Agreement; provided, however, that Subsidiary may defer payment of
any amount owing by it to Parent within 15 days of each such
estimated federal income tax payment date anal the March 15
extension date until the earlier of (1) 30 days prior to the filing
of the federal income tax return or (ii) 15 days prior to the next
estimated federal income tax payment date or extension date of the
Group for which the Group actually incurs a federal income tax
liability. The amount of any overpayment or underpayment pursuant
to this Section 2(a) shall be credited against, or added to, as the
case may be, the amount otherwise required to be paid for the
period within which the amount of such overpayment or underpayment
first becomes reasonably ascertainable. The settlements may be
satisfied by check or wire transfer or by such other means as the
parties may mutually agree.
(b) To the extent the subsidiary has
“Separate Company Tax Liability” (hereinafter
defined),
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the Subsidiary shall pay Parent in
the time and manner described in Section 2(a). For purposes of this
Agreement, “Separate Company Tax Liability” for any
taxable year or fractional period shall be the amount, if any, of
the federal income tax liability (including, without limitation,
liability for any penalty, fine, additions to tax, interest,
minimum tax (but only to the extent of Subsidiary’s allocable
share of actual consolidated minimum tax liability based upon
Subsidiary’s relative amounts of items of tax preference, and
any credit with respect thereto shall be allocated to Subsidiary)
and other items of any nature applicable to the Subsidiary in
connection with the determination of Subsidiary’s tax
liability) which Subsidiary would have incurred if Subsidiary had
filed a separate federal income tax return (or estimated federal
income tax return) for a taxable period consisting of such taxable
year or fractional period computed in a manner consistent with (i)
general tax accounting principles, (ii) the Code and regulations
thereunder, and (iii) so long as a reasonable legal basis exists
therefor, prior custom and practice. Transactions between
Subsidiary and Parent which are deferred under the federal income
tax return shall also be deferred for purposes of this Agreement.
In the event Subsidiary owns
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subsidiaries that are members of the
Group, Separate Company Tax Liability shall be computed on a deemed
consolidated basis as if Subsidiary were the common parent of an
affiliated group of domestic corporations (within the meaning of
Section 1504 (a) of the Code) consisting of itself and its
includable subsidiaries (the “Hypothetical Subsidiary
Group”). In no event shall the amount required to be paid by
Subsidiary to Parent on behalf of Parent exceed the amount that
would have been paid had Subsidi
