fees and costs
incurred or suffered by Titan or one or more of the Titan Indemnified Parties in
connection with, relating to, arising out of or due to, directly or indirectly
(i) any SureBeam Taxes and (ii) any amount determined to be SureBeam's liability
under Section 3.4. SureBeam shall be entitled to any refund of or credit for
Taxes for which SureBeam is responsible under this Section 3.3(a).
Titan shall be liable for and pay, and shall indemnify, defend, and hold
harmless SureBeam and the SureBeam Indemnified Parties from and against, any and
all loss, cost, damage or expense, including reasonable attorneys' fees and
costs incurred or suffered by SureBeam or one or more of the SureBeam
Indemnified Parties in connection with, relating to, arising out of, or due to,
directly or indirectly (i) any Titan Taxes and Titan shall be entitled to any
refund of or credit for Taxes for which Titan is responsible under this Section
3.3(b).
Except as set forth in this Agreement or the Tax Allocation Agreement and in
consideration of the mutual indemnities and other obligations of this Agreement,
any and all prior Tax sharing agreements or practices between any member of the
Titan Group and any member of the SureBeam Group shall be terminated with
respect to the SureBeam Group as of the Distribution Date.
Restructuring Taxes.
SureBeam and Titan shall each be liable for 50% of Restructuring Taxes that are
imposed as a result of neither a SureBeam Tainting Act nor a Titan Tainting
Act.
In the case of the imposition of a Restructuring Tax where there is both a
SureBeam Tainting Act and a Titan Tainting Act, and each of the SureBeam
Tainting Act and the Titan Tainting Act would alone be sufficient to result in
the imposition of such Restructuring Tax, SureBeam and Titan shall each be
liable for 50% of such Restructuring Tax.
In the case of a Restructuring Tax
that would not have been imposed but for the existence of both a SureBeam
Tainting Act and a Titan Tainting Act, SureBeam and Titan shall be liable for
such Restructuring Tax to the extent the SureBeam Tainting Act and the Titan
Tainting Act, respectively, contributed to the imposition of such Restructuring
Tax.
Except as described in Section 3.4(a), SureBeam shall be liable for
Restructuring Taxes imposed as a result of a SureBeam Tainting Act.
Except as described in Section 3.4(a), Titan shall be liable for Restructuring
Taxes imposed as a result of a Titan Tainting Act.
Additional SureBeam Equity Financing.
Notwithstanding Section 3.4, (a) any
Equity Transaction by SureBeam during the two year period following the
Distribution Date and (b) any shareholder vote contemplated by Section 6(b)(ii)
of the Certificate of Incorporation of SureBeam; shall be subject to the prior
written consent of Titan, which consent shall not be unreasonably withheld but
which consent may be conditioned upon the receipt by Titan of (i) a legal
opinion or tax opinion in form and substance satisfactory to Titan of a
reputable