Lailaw Co-Gen, Inc. Stockholders' Agreement

WHEREAS, the Stockholders are the record owners of all of the issued and outstanding shares of the $1.00 par value common capital stock of the Corporation;

1.1               Definitions. The following terms used in this Stockholders' Agreement shall have the following meanings (unless otherwise expressly provided herein):

"Environmental Law" shall have the meaning set forth in Section 10.7(a) hereof.

 

"Facility" shall have the meaning set forth in Article II hereof.

"Order" shall mean any judgment, order, injunction, decree, writ, permit or license of any Governmental or Regulatory Authority or any arbitrator.

(a) The business, property, and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors shall consist of three (3) individuals. The Stockholders agree that during the RGB Ownership Period the Board of Directors of the Corporation shall be comprised of three persons, one of which shall be designated by LEG, and two of which shall be designated by RGB. Each Stockholder on behalf of itself and its assignees agrees that it will vote its Shares or execute written consents, as the case may be, and take all other necessary action (including causing the Corporation to call a special meeting of Stockholders) to ensure the composition of the Board of Directors is as set forth in this Section 3.1(a). Except as otherwise limited by this Agreement, the Board of Directors shall have full, exclusive and complete discretion to manage and control the business and affairs of the Corporation, to make all decisions affecting the business and affairs of the Corporation and to take all such actions as it deems necessary or appropriate to accomplish the purposes of the Corporation as set forth herein.

(b) It is agreed that immediately upon execution of this Agreement, the Stockholders shall be deemed to designate the following individuals as their respective designees to the Board of Directors of the Corporation: Rolando Gonzalez-Bunster and Michael Bax, as designees of RGB; and Michael B. Bartoszek, as designee of LEG.

 

(c) Each Stockholder agrees that it will only vote its Shares or other securities now or hereafter owned or controlled by it in favor of the removal of any Director upon the request of the Stockholder who designated or nominated such director pursuant to Section 3.1(a).

 

(d) The Corporation shall seek to secure directors' and officers' liability insurance with coverage customary for corporations in the United States having capitalization and asset bases similar to those of the Corporation upon terms reasonably satisfactory to the Board of Directors.

 

(e) During the LEG Ownership Period and the RGB Ownership Period, any check or any other disbursement of funds (in one or a series of connected transactions) in excess of $50,000 or its equivalent shall require the signature or other written approval of both Michael Bartoszek and another director.

(a) In any threatened, pending or completed action, suit or proceeding to which an Officer or a Director was or is a party or is threatened to be made a party by reason of the fact that he is or was an Officer or a Director of the Corporation (each, an "Indemnitee") involving an alleged cause of action for damages arising from the performance of his activities on behalf of the Corporation, the Corporation shall indemnify such Indemnitee against expenses, including reasonable attorney's fees, judgments, and amounts paid in settlement, actually and reasonably incurred by him in connection with such action, suit or proceeding if the Indemnitee acted in good faith and in a manner it believed to be in or not opposed to the best interest of the Corporation, and provided that his conduct has not been found by a nonappealable court judgment, order, decree or decision to constitute bad faith or willful or wanton misconduct. The termination of any action, suit or proceeding by judgment, order, or settlement shall not, of itself, create a presumption that the Indemnitee did not act in good faith and in a manner which it reasonably believed to be in or not opposed to the best interest of the Corporation.

 

(b) Notwithstanding the foregoing, the Corporation shall not be obligated under this Agreement to make any indemnity in connection with any claim made against an Indemnitee:

(i) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or

(ii) in connection with any proceeding (or any part of any proceeding initiated by Indemnitee, including any proceeding (or any part of any proceeding) initiated by Indemnitee against the Corporation or its directors, officers, employees or other Indemnitees.

(c) The Corporation shall advance the expenses incurred by the Indemnitee in connection with any proceeding as promptly as practicable after the receipt by the Corporation of a statement or statements requesting such advances from time to time, whether prior to or after final disposition of any proceeding. Advances shall be unsecured and interest free. Advances shall be made without regard to the Indemnitee's ability to repay the expenses and without regard to Indemnitee's ultimate entitlement to indemnification under the other provisions of this Agreement. Advances shall include any and all reasonable expenses incurred pursuing an action to enforce this right of advancement, including reasonable legal fees and disbursements. The Indemnitee shall qualify for advances solely upon the execution and delivery to the Corporation of an undertaking providing that the Indemnitee undertakes to repay the advance to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Corporation. This Section 3.2(c) shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 3.2(b).

 

(d) The indemnification set forth in this paragraph shall in no event cause the Stockholders to incur any liability to the Corporation or its Directors, nor shall it result in any liability of the Stockholders to any third party.

(a) any amendment or modification to the Certificate or other similar organizational document of the Corporation (including the By-Laws) which will have a material adverse effect on the rights of any Stockholder whether under this Agreement or otherwise or any change in the rights and priviledges of the Shares;

 

(b) any action to convert or change the Corporation into a limited liability company or other form of business organization other than a corporation;

 

(c) selling, leasing, transferring or otherwise disposing of any of assets of the Corporation or any of its Subsidiaries to, or the purchasing by the Corporation or any of its Subsidiaries assets from, or entering into or making any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless such Affiliate Transaction is on terms that are no less favorable to the Corporation or the relevant Subsidiary than those that could have been obtained in a comparable transaction by the Corporation or such Subsidiary with an unrelated Person;

 

(d) any amendment, modification or renegotiation of the Operations and Management Agreement entered into by the Corporation and LEG as of the date hereof;

 

(e) creating, incurring or assuming any indebtedness for borrowed money in excess of $250,000 in the aggregate, other than the Loans;

 

(f) any prepayment of the Loans; and

(g) issuing any additional Shares or taking any other similar action which, after giving effect thereto, would have the effect of diluting the percentage interest of the capital stock owned by any Stockholder in the income of, or distributions from, the Corporation, or the voting power, represented by such Shares; provided, however, that if the Board of Directors shall determine that additional capital is needed in connection with the construction or refurbishment of the Facility or in connection with the operation of the Facility then the super-majority approval of the Stockholders required by this Section 3.3 shall not be required in connection with the issuance of any additional Shares or other equity securities of the Corporation made to raise capital for such purpose.

6.1               Authorized Shares. The total number of Shares which may be issued by the Corporation is three thousand (3,000).

(i)            any Stockholder that is an entity may at any time Transfer all or a portion of its Shares to its ultimate parent entity (the "Parent") of which it is a direct or indirect wholly owned subsidiary or to any wholly owned direct or indirect subsidiary of such Parent (a "Controlled Subsidiary"), it being understood that, with respect to a Controlled Subsidiary, the later sale, liquidation or spin-off of such Controlled Subsidiary or other transaction in which the Parent ceases to control, directly or indirectly, 100% of the equity of such Controlled Subsidiary would constitute an indirect Transfer of Shares, which Transfer may only be made in compliance with the terms and restrictions set forth in this Agreement;

 

(ii)           any Stockholder may at any time Transfer all or a portion of its Shares to a Person controlled by such Stockholder, it being understood that, the later sale, liquidation or spin-off or other transaction in which such Person ceases to be controlled by the transferring Stockholder would constitute an indirect Transfer of Shares, which Transfer may only be made in compliance with the terms and restrictions set forth in this Agreement;

 

(iii)          a Transfer by operation of law to the estate or personal representative of a deceased or incompetent individual Stockholder (which estate or representative will then be subject to the same restrictions on Transfer as all other Stockholders); and

 

(iv)          a Transfer by a Stockholder to his or her parents and siblings, their respective spouses and descendants and the spouses of such descendants or to a trust the beneficiaries which consist exclusively of one or more of the forgoing.

(i)             The Selling Stockholder shall provide written notice to the Board and to the other Stockholders of the terms and conditions of the proposed Transfer, including the proposed purchase price (the "Asking Price") for the Shares (or portion thereof) it is seeking to Transfer (the "Offered Shares") and the name and address of the Third Party Transferee. Such notice shall constitute an irrevocable offer by the Selling Stockholders to sell the Offered Shares to the non-selling Stockholders for the Asking Price.

 

(ii)           The non-selling Stockholders shall have the right during a twenty-one (21) day period to propose to acquire the Offered Shares for the Asking Price (or some portion of the Offered Shares for a pro rata portion of the Asking Price), payable in cash. The closing of any sale pursuant to this Section 7.1(b)(ii) shall take place within fifteen (15) days following the end of such twenty-one (21) day period.

 

(iii)If the Offered Shares (or a portion thereof) is not proposed to be acquired by the non-selling Stockholders by the end of the twenty-one (21) day period specified in Section 7.1(b)(ii) or actually acquired by the non-selling Stockholders by the end of the further fifteen (15) day period specified therein (other than by reason of the Selling Stockholder's default), then the Selling Stockholder may Transfer the Offered Shares (or a portion thereof) within an additional thirty (30) days, at not less than the Asking Price to the Third Party Transferee.

(iv) If the Selling Stockholder does not consummate the Transfer of the Offered Shares (or a portion thereof) to the Third Party Transferee within the additional thirty (30) day period specified in Section 7.1(b)(iii), such Selling Stockholder must follow the procedures set forth in subparagraphs (i)-(iii) above in response to a bona fide offer from a Third Party Transferee.

(d) Notwithstanding any other provisions of this Article VIII, no Transfer of all or any fraction of a Stockholder's Shares may be made unless:

(ii)           such Transfer would not cause the Corporation to lose its exemption from the registration requirements of the Investment Company Act;

 

(iii)          such Transfer would not result in the Corporation being required to register under Section 12(g) of the Securities Exchange Act of 1934, as amended;

 

(iv)          the transferee of the Shares executes this Agreement; and

 

(v)           if requested by the Board, the Stockholder shall have provided an opinion of counsel reasonably satisfactory to the Board as to the matters set forth in this Section 7.1(d)(i)-(iv) and such other matters as the Board may reasonably request.

(a) cessation of the corporate business;

 

(b) written agreement of the Stockholders owning at least ninety percent (90%) of the Shares;

 

(c) adjudication of bankruptcy or dissolution of the Corporation or appointment of a receiver for the Corporation or any substantial part of its assets; or

 

(d) acquisition of one Person of all of the outstanding Shares.

(a) Confidentiality. Each Stockholder acknowledges that by virtue of its holding an interest in the Corporation, its Affiliates will have access to Stockholder Confidential Information (as hereinafter defined) of each other Stockholder and Company Confidential Information (as hereinafter defined) and that the communication of such Stockholder Confidential Information or Company Confidential Information to third parties could irreparably injure the business of such other Stockholders or the Corporation. Accordingly, each Stockholder agrees that during the period during which it is a Stockholder of the Corporation (the "Holding Period") and for a three (3) year period thereafter, it shall treat and safeguard as confidential and secret all Stockholder Confidential Information and Company Confidential Information received by it at any time, and that it shall not, without the prior written consent of the Corporation and the other Stockholder to whom such Stockholder Confidential Information relates, disclose or reveal any of the Stockholder Confidential Information or Company Confidential Information to any third party whatsoever or use the same in any manner other than in connection with the business of the Corporation, except as may be required by an order of a court of competent jurisdiction, or a regulatory or governmental body having jurisdiction over it, provided that it shall give prompt notice of any such order so as to give the Corporation and the other Stockholder to whom such Stockholder Confidential Information relates adequate opportunity to object to such order. For the purposes of this Agreement, (i) "Stockholder Confidential Information" means any information not generally known to the public or recognized as standard industry practice, including, without limiting the generality of the foregoing, any data, reports, interpretations, forecasts, know-how, technology, compositions, devices, plans, strategies, studies, employee information, intellectual property, the substance of agreements with clients, suppliers and others, marketing arrangements and the existence of the discussions between the parties hereto, computer code, algorithms, customer lists, supplier lists, trade secrets, product development plans, research, inventions, ideas, concepts, designs, formulae, methods or processes, whether or not patented or patentable, channels of distribution, pricing policies and records, financial records and inventory records of such Stockholder, and such other information normally understood to be confidential or otherwise designated as such in writing by the Stockholder, as well as information discerned from, based on or relating to any of the foregoing which may be prepared by any Stockholder or any of its Affiliates, all of which each Stockholder expressly acknowledges and agrees shall be confidential and proprietary information belonging to such Stockholder, and (ii) "Company Confidential Information" means any financial data, financial reports, financial forecasts, and the terms of any power purchase agreement or other agreement which is material to the operations of the Corporation. Notwithstanding the foregoing, the tax treatment or tax structure (as such terms are defined in Treasury Regulation Section 1.6011-4(c)) of any transaction shall not constitute Stockholder Confidential Information or Company Confidential Information. Upon termination of the Holding Period, each Stockholder and any Affiliate having possession of same shall return to the Corporation all documents and papers relating to the Corporation, including any Stockholder Confidential Information and Company Confidential Information, together with any copies thereof; provided that the Corporation shall allow reasonable access and use of Stockholder Confidential Information and Company Confidential Information by the Stockholders for the sole purpose of documenting such Stockholder's rights and obligations as a Stockholder.

(b) Non-solicitation. Each Stockholder shall not, and shall cause its Affiliates not to, during the Holding Period and for a period of three (3) years thereafter persuade or attempt to persuade (i) any person providing services or goods to the Corporation ("Contractors") not to do business with the Corporation or to reduce the amount of business it does with the Corporation; (ii) any customer or potential customer not to do business with the Corporation or to reduce the amount of business it does with the Corporation; or (iii) any Director, officer or employee of the Corporation or any individual who was a Director, officer or employee (other than Directors or officers designated by such Stockholder) during such Holding Period ("Employees"), to leave the Corporation's employ or to become employed by any entity other than the Corporation. Notwithstanding the foregoing, LEG may utilize Contractors for other projects undertaken by LEG so long as such utilization does not have a Material Adverse Effect upon the Corporation's operations and may solicit Employees who, at the time of the solicitation, are not employed by the Corporation provided that such termination of employment was not due to any action taken by LEG or its officers without the approval of the Corporation's Board of Directors.

(c) Disparaging Statements. Each Stockholder shall not, during such Stockholder's Holding Period and thereafter, without limitation of time, make any disparaging statements concerning the Corporation, its officers, members, Directors, Stockholders, employees, products or services that could injure, impair or damage relationships between the Corporation and its employees, officers, members, Directors, Stockholders, customers or suppliers or any lessor, lessee, vendor, supplier, customer, distributor, consultant or other business associate of the Corporation.

 

(d) Remedy. Each Stockholder specifically acknowledges and agrees that the remedy at law for any breach of the provisions of this Section 9.4 will be inadequate and that the other Stockholders and the Corporation, in addition to any other relief available to them, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damages or posting any bond.

 

(e) Reformation. If any term or provision set forth in this Section 9.4 is ruled by a tribunal of competent jurisdiction to be excessively broad as to time, duration, geographical scope, activity or subject, the construction and interpretation of such term or provision shall be deemed reformed to the maximum limitations permitted by applicable law.

 

(f) Corporation. For purposes of this Section 9.4, the term "Corporation" shall also include any and all entities controlling, controlled by, or under common control with, the Corporation.

(a) Assignment of Agreements. LEG has assigned to the Corporation all of its right, title and interest in the Fuel Supply Agreement by and between Laidlaw Energy Group, Inc. and Cousineau, Inc. dated April 16, 2004, as amended April 25, 2005, the Letter of Agreement for Equipment Sale dated September 23, 2005, by and between Laidlaw Energy Group, Inc. and Belyea Company, Inc. pertaining to the purchase of a used 5 mW GE Steam turbine generator, and the Equipment Purchase and Sale Agreement by and between Laidlaw Energy Group, Inc. and Clean Energy Systems, Inc. pertaining to the purchase of a used Wellons/Nebraska boiler and related equipment, and all other work performed by LEG to date in connection with the Project (the costs associated therewith, in the amount of approximately $250,000, having been previously paid by LEG) as well as all other documentation, information and property relating to the Project in exchange for the Shares. LEG agrees that, at any time and from time to time upon the written request of the Corporation, it will execute and deliver such further documents and do such further acts and things as the Corporation may reasonably request in order to effect the purposes of this Section 9.5 (a).

 

(b) New York State Energy Research & Development Authority Grant. LEG hereby agrees to contribute to the Corporation all amounts received in payment of the New York State Energy Research & Development Authority grant, which grant is described on Exhibit A hereto, promptly after LEG's receipt of such amounts. LEG hereby represents that the assignment of the proceeds of the grant does not require the consent, approval, authorization or other action by the New York State Energy Research & Development Authority or any other Governmental Authority. LEG agrees that, at any time and from time to time upon the written request of the Corporation, it will execute and deliver such further documents and do such further acts and things as the Corporation may reasonably request in order to effect the purposes of this Section 9.5 (b).

 

(c) Chatsworth Securities, LLC Release. Chatsworth Securities, LLC, a New York limited liability company ("Chatsworth"), hereby releases RGB, LEG, LEE and any and all of their Affiliates, officers, directors, equityholders, employees and agents from any and all liability for any fee or out-of-pocket costs due in connection with RGB's investment hereunder pursuant to the terms of the agreement dated December 22, 2005, by and between Chatsworth and LEG, or any other agreement relating to the Facility or the Project.

 

(d) Supplemental Indenture. Each Stockholder shall, and shall cause each of its affiliates that holds the Bonds, to use reasonable efforts to cause a Supplemental Indenture to the Trust Indenture, dated as of December 1, 1999 by and between County of Cattaraugus Industrial Development Agency (the "Issuer") and State Street Bank and Trust Company, N.A. for the holders of the Issuer's Tax-Exempt Industrial Development Bonds, Series 1999A in the original principal amount of $7,000,000 and the Issuer's Taxable Industrial Development Revenue Bonds in the original principal amount of $500,000 (collectively, the "Bonds") to be entered within forty-five (45) days of the date of hereof which will provide for the following: (i) permit the granting of a Lien on all the assets of the Corporation and a Mortgage on the Facility to secure the Loans subject only to the Liens created by the Trust Indenture, and (ii) the refinancing of the past due principal and interest amounts under the Bonds so that all such amounts will be due upon maturity of the Bonds.

(a) Schedule 10.5(a) sets forth an accurate and complete list of the following Contracts to which LEE or any of its Subsidiaries is a party or by which any of them are bound:

(i)            all Contracts relating to capital expenditures or other purchases of material, supplies, equipment or other assets or properties (other than purchase orders for inventory or supplies in the ordinary course of business) in excess of $10,000 individually, or $100,000 in the aggregate;

 

(ii)           all Contracts involving Indebtedness of LEE or any of its Subsidiaries;

 

(iii)          all Contracts granting or evidencing a Lien on any properties or assets of LEE or any of its Subsidiaries, other than a Permitted Lien;

 

(iv)          any management service, consulting, financial advisory or any other similar type Contract;

 

(v)           all Contracts limiting the ability of LEE or any of its Subsidiaries to engage in any line of business or to compete with any Person;

 

(vi)          all Contracts (other than this Agreement and any agreement or instrument entered into pursuant to this Agreement) with (A) LEG, any other Affiliate of LEE or any Affiliate of LEG (other than the Corporation or one of its Subsidiaries) or (B) any current or former officer or director of the Corporation or any of its Subsidiaries;

(viii)        all Contracts involving $10,000 or more which are not cancelable by LEE or any of its Subsidiaries without penalty on thirty (30) days or less notice; or

(ix)           all other Contracts that are material to the business of LEE and its Subsidiaries taken as a whole.

(b) Each Contract set forth on Schedule 10.5(a) (or required to be set forth on Schedule 10.5(a)) is in full force and effect and there exists no (i) default or event of default by LEE or any of its Subsidiaries or, to the knowledge of LEG, any other party to any such contract with respect to any material term or provision of any such Contract or (ii) event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) which, with the giving of notice, the lapse of time or the happening of any other event or condition, would become a default or event of default by LEE or any of its Subsidiaries or, to the knowledge of LEG, any other party thereto, with respect to any material term or provision of any such Contract. Neither the Corporation nor any Subsidiary is currently in violation of any of the material terms or conditions of any contract or agreement set forth on Schedule 10.5(a) (or required to be set forth on Schedule 10.5(a)) and, to the knowledge of LEG all of the covenants to be performed by any other party thereto have been fully performed in all material respects. LEG has delivered to RGB true and complete copies, including all amendments, of each Contract set forth on Schedule 10.5(a).

(a) For purposes of this Agreement, (i) "Environmental Law" shall mean any Law, Order or other requirement of law, including any principle of common law, relating to the protection of human health or the environment, or to the manufacture, use, transport, treatment, storage, disposal, release or threatened release of petroleum products, asbestos, urea formaldehyde insulation, polychlorinated biphenyls or any substance listed, classified or regulated as hazardous or toxic, or any similar term, under such Environmental Law and (ii) "Corporation Property" shall mean any real property and improvements currently or formerly owned (directly, indirectly, or beneficially), leased, used, operated or occupied by LEE or its Subsidiaries.

 

(b) Except as set forth on Schedule 10.7(b) and except as would not have a Material Adverse Effect with respect to LEE, (i) LEE and each of its Subsidiaries are in compliance with all applicable Environmental Laws, and have obtained, and are in compliance with, all Permits required of them under applicable Environmental Laws; (ii) there are no claims, proceedings, investigations or actions by any Governmental or Regulatory Authority or other Person or entity pending, or to the knowledge of LEG threatened, against LEE or any of its Subsidiaries under any Environmental Law; and (iii) there are no facts, circumstances or conditions relating to the past or present business or operations of LEE or any of its Subsidiaries (including the disposal or recycling of any wastes, hazardous substances, petroleum products or other materials at locations not owned, leased or operated by LEE or any of its Subsidiaries), or relating to any past or present Corporation Property of LEE, that could reasonably be expected to give rise to any claim, proceeding or action, under any Environmental Law.

10.8            Permits. Except as set forth on Schedule 10.8, LEG has delivered or made available to Purchaser for inspection a complete, true and correct copy of each permit (including occupancy permit), certificate, license, consent or authorization of any Governmental or Regulatory Authority (each, a "Permit") obtained or possessed by LEE and its Subsidiaries. LEE and each of its Subsidiaries have obtained and possess all Permits and have made all registrations or filings with or notices to any Governmental or Regulatory Authority necessary for the lawful conduct of their businesses as presently conducted, or necessary for the lawful ownership of their properties and assets or the operation of their businesses as presently conducted, other than those the failure of which to obtain, possess or make would not have a Material Adverse Effect with respect to LEE. All such Permits are in full force and effect except for those the failure of which to be in full force and effect would not have a Material Adverse Effect with respect to LEE. LEE and each of its Subsidiaries are compliance with all such Permits except for such non-compliances that would not have a Material Adverse Effect with respect to LEE. Each such Permit can be renewed or transferred in the ordinary course of business by LEE, as the case may be. No proceeding to modify, suspend, revoke, withdraw, terminate or otherwise limit any such Permit is pending or threatened and LEG does not know of any valid basis for such proceeding, including the transactions contemplated hereby. No administrative or governmental action or proceeding has been taken or threatened, in connection with the expiration, continuance or renewal of any such Permit and LEG does not know of any valid basis for any such proceeding.

10.9             No Material Adverse Change. Except as set forth on Schedule 10.9 or disclosed in the 2005 income tax return of LEE, since the date of the Balance Sheet, there has not been a Material Adverse Change with respect to LEE and no fact, circumstance or event exists or has occurred which would result in a Material Adverse Change with respect to LEE.

(a) LEE has timely filed or caused to be timely filed with the appropriate taxing authorities all tax returns, statements, forms and reports (including, elections, declarations, disclosures, schedules, estimates and informational tax returns) for Taxes ("Returns") that are required to be filed by, or with respect to, LEE or any of its Subsidiaries on or prior to the date hereof. The Returns have accurately reflected and will accurately reflect all liability for Taxes of LEE for the periods covered thereby. All Taxes and Tax liabilities of the Corporation for all taxable years or periods that end on or before the date hereof and, with respect to any taxable year or period beginning before and ending after date hereof, the portion of such taxable year or period ending on and including the date hereof have been timely paid or accrued and adequately disclosed and fully provided for on the books and records of LEE.

 

(b) For purposes of this Agreement, "Taxes" shall mean all taxes, assessments, charges, duties, fees, levies or other governmental charges, including all U.S. and non-U.S. federal, state, local and other income, franchise, profits, capital gains, capital stock, transfer, sales, use, occupation, property, excise, severance, windfall profits, stamp, license, payroll, withholding and other taxes, assessments, charges, duties, fees, levies or other governmental charges of any kind whatsoever (whether payable directly or by withholding and whether or not requiring the filing of a Return (as defined above)), all estimated taxes, deficiency assessments, additions to tax, penalties and interest and shall include any liability for such amounts as a result either of being a member of a combined, consolidated, unitary or affiliated group or of a contractual obligation to indemnify any Person or other entity.