Common use of Apportionment of Earnings and Profits and Tax Attributes Clause in Contracts

Apportionment of Earnings and Profits and Tax Attributes. (a) If the UTC Affiliated Group has a Tax Attribute, the portion, if any, of such Tax Attribute apportioned to a SpinCo or any member of a SpinCo Group and treated as a carryover to the first Post-Deconsolidation Period of such SpinCo (or such member) shall be determined by UTC in accordance with Treasury Regulations Sections 1.1502-21, 1.1502-21T, 1.1502-22, 1.1502-79 and, if applicable, 1.1502-79A. (b) No Tax Attribute with respect to consolidated Federal Income Tax of the UTC Affiliated Group, other than those described in Section 4.09(a), and no Tax Attribute with respect to any consolidated, combined or unitary State or Foreign Income Tax, in each case, arising in respect of a Joint Return shall be apportioned to any SpinCo or any member of any SpinCo Group, except as UTC (or such member of the UTC Group as UTC shall designate) determines is otherwise required under applicable law. (c) UTC shall use commercially reasonable efforts to determine or cause its designee to determine the portion, if any, of any Tax Attribute that must (absent a Final Determination to the contrary) be apportioned to a SpinCo or any member of a SpinCo Group in accordance with this Section 4.09 and applicable law and the amount of Tax basis and earnings and profits (including, for the avoidance of doubt, PTEP) to be apportioned to a SpinCo or any member of a SpinCo Group in accordance with this Section 4.09 and applicable law, and shall provide written notice of the calculation thereof to such SpinCo as soon as reasonably practicable after UTC or its designee prepares such calculation. For the absence of doubt, UTC shall not be liable to any SpinCo or any member of any SpinCo Group for any failure of any determination under this Section 4.09 to be accurate or sustained under applicable law, including as the result of any Final Determination. (d) Any written notice delivered by UTC pursuant to Section 4.09(c) shall be binding on the relevant SpinCo and each member of the relevant SpinCo Group and shall not be subject to dispute resolution; provided that UTC shall consider in good faith any reasonable comments the relevant SpinCo may timely provide with respect to such written notice. Except to the extent otherwise required by a change in applicable law or pursuant to a Final Determination, no SpinCo shall take any position (whether on a Tax Return or otherwise) that is inconsistent with the information contained in any such written notice.

Apportionment of Earnings and Profits and Tax Attributes. (a) If the UTC EQT Affiliated Group has a Tax Attribute, the portion, if any, of such Tax Attribute apportioned to a SpinCo or any member the members of a the SpinCo Group and treated as a carryover to the first Post-Deconsolidation Distribution Taxable Period of such SpinCo (or such member) shall be determined by UTC EQT in accordance with Treasury Regulations Sections 1.1502-21, 1.1502-21T, 1.1502-22, 22 and 1.1502-79 (and, if applicable, 1.1502-79A.21A and 1.1502-79A). (b) No Tax Attribute with respect to consolidated Federal Income Tax of the UTC EQT Affiliated Group, other than those described in Section 4.09(a4.07(a), and no Tax Attribute with respect to any consolidated, combined combined, unitary or unitary similar State Income Tax or Foreign Income Tax, in each case, arising in respect of a Joint Return shall be apportioned to any SpinCo or any member of any the SpinCo Group, except as UTC EQT (or such member of the UTC EQT Group as UTC EQT shall designate) determines is otherwise required under applicable lawTax Law. (c) UTC EQT (or its designee) shall use commercially reasonable efforts to determine or cause its designee to determine the portion, if any, of any Tax Attribute that which must (absent a Final Determination to the contrary) be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.07 and applicable law Tax Law and the amount of Tax tax basis and earnings and profits (including, for the avoidance of doubt, PTEP) to be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.07 and applicable lawTax Law, and shall provide written notice of the calculation thereof to such SpinCo as soon as reasonably practicable after UTC or its designee prepares the information necessary to make such calculationcalculation becomes available to EQT. For the absence avoidance of doubt, UTC EQT shall not be liable to any SpinCo or any member of any the SpinCo Group for any failure of any determination under this Section 4.09 4.07 to be accurate or sustained under applicable law, including as the result of any Final DeterminationTax Law. (d) Any The written notice delivered by UTC EQT pursuant to Section 4.09(c4.07(c) shall be binding on the relevant SpinCo and each member of the relevant SpinCo Group and shall not be subject to dispute resolution; provided that UTC shall consider in good faith any reasonable comments the relevant SpinCo may timely provide with respect to such written notice. Except to the extent otherwise required by a change in applicable law Tax Law or pursuant to a Final Determination, no SpinCo shall not take any position (whether on a Tax Return or otherwise) that is inconsistent with the information contained in any such written notice. (e) Notwithstanding any of the above, the foregoing provisions of this Section 4.07 shall not be construed as obligating EQT to undertake any determination described therein. In the event that SpinCo requests that EQT undertake any such determination and EQT determines, in its sole and absolute discretion, not to undertake such determination and so advises SpinCo, SpinCo shall be permitted to undertake such determination at its own cost and expense and shall notify EQT of its determination (which determination shall not be binding on EQT).

Apportionment of Earnings and Profits and Tax Attributes. (a) If the UTC Parent Affiliated Group has a Tax Attribute, the portion, if any, of such Tax Attribute apportioned to a SpinCo or any member of a the SpinCo Group and or treated as a carryover to the first Post-Deconsolidation Period of such SpinCo (or such member) shall be determined by UTC Parent in accordance with Treasury Regulations Sections 1.1502-21, 1.1502-21T, 1.1502-22, 1.1502-79 and, if applicable, 1.1502-79A. (b) No Tax Attribute with respect to any consolidated Federal Income Tax of the UTC Parent Affiliated Group, other than those described in Section 4.09(a4.08(a), and no Tax Attribute with respect to any consolidated, combined or unitary State or Foreign Income Tax, in each case, arising in respect of a Joint Return Return, shall be apportioned to any SpinCo or any member of any the SpinCo Group, except as UTC Parent (or such member of the UTC Parent Group as UTC Parent shall designate) determines is otherwise required under applicable lawTax Law. (c) UTC To the extent required by applicable Tax Law or at SpinCo’s reasonable request, Parent shall, or shall use commercially reasonable efforts to determine or cause its designee to determine determine, in its reasonable discretion, the portion, if any, of any Tax Attribute that must (absent a Final Determination to the contrary) be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.08 and applicable law and the amount of Tax basis and earnings and profits (including, for the avoidance of doubt, PTEP) to be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.08 and applicable lawTax Law, and shall provide written notice of the a proposed calculation thereof to such SpinCo as soon as reasonably practicable after UTC Parent or its designee prepares such calculation. As soon as reasonably practicable following the delivery of such calculation, SpinCo shall provide written comments on such calculation to Parent, which comments Parent shall consider in good faith in its reasonable discretion. For the absence of doubt, UTC Parent shall not be liable to any SpinCo or any member of any the SpinCo Group for any failure of any determination under this Section 4.09 4.08 to be accurate or sustained under applicable lawTax Law, including as the result of any Final Determination. The costs of any earnings and profits, Tax basis or similar study necessary or appropriate to determine the apportionment of Tax Attributes hereunder shall be borne equally by Parent and SpinCo. (d) Any written notice delivered by UTC Parent pursuant to Section 4.09(c4.08(c) shall shall, in the absence of bad faith and mathematical error, be conclusive, final and binding on the relevant SpinCo and each member of the relevant SpinCo Group and shall not be subject to dispute resolution; provided that UTC shall consider in good faith any reasonable comments the relevant SpinCo may timely provide with respect to such written noticeGroup. Except to the extent otherwise required by a change in applicable law Tax Law or pursuant to a Final Determination, no SpinCo shall not take any position (whether on a Tax Return or otherwise) that is inconsistent with the information contained in any such written notice.

Apportionment of Earnings and Profits and Tax Attributes. (a) If the UTC EPC Affiliated Group has a Tax Attribute, the portion, if any, of such Tax Attribute apportioned to a SpinCo or any member the members of a the SpinCo Group and treated as a carryover to the first Post-Deconsolidation Distribution Taxable Period of such SpinCo (or such member) shall be determined by UTC EPC in accordance with Treasury Regulations Regulation Sections 1.1502-21, 1.1502-21T, 1.1502-22, 1.1502-79 and, if applicable, 1.1502-79A. (b) No Tax Attribute with respect to consolidated Federal Income Tax of the UTC EPC Affiliated Group, other than those described in Section 4.09(a4.08(a), and no Tax Attribute with respect to any consolidated, combined or unitary State state, local, or Foreign foreign Income Tax, in each case, arising in respect of a Joint Return shall be apportioned to any SpinCo or any member of any the SpinCo Group, except as UTC EPC (or such member of the UTC EPC Group as UTC EPC shall designate) determines is otherwise required under applicable law. (c) UTC EPC (or its designee) shall use commercially reasonable efforts to determine or cause its designee to determine the portion, if any, of any Tax Attribute that which must (absent a Final Determination to the contrary) be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.08 and applicable law and the amount of Tax tax basis and earnings and profits (including, for the avoidance of doubt, PTEPPTI) to be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.08 and applicable law, and shall provide written notice of the calculation thereof to such SpinCo as soon as reasonably practicable after UTC or its designee prepares the information necessary to make such calculationcalculation becomes available to EPC. For the absence of doubt, UTC EPC shall not be liable to any SpinCo or any member of any the SpinCo Group for any failure of any determination under this Section 4.09 4.08 to be accurate or sustained under applicable law, including as the result of any Final Determination. (d) Any The written notice delivered by UTC EPC pursuant to Section 4.09(c4.08(c) shall be binding on the relevant SpinCo and each member of the relevant SpinCo Group and shall not be subject to dispute resolution; provided that UTC shall consider in good faith any reasonable comments the relevant SpinCo may timely provide with respect to such written notice. Except to the extent otherwise required by a change in applicable law or pursuant to a Final Determination, no SpinCo shall not take any position (whether on a Tax Return or otherwise) that is inconsistent with the information contained in any such written notice.

Apportionment of Earnings and Profits and Tax Attributes. (a) If the UTC Parent Affiliated Group has a Tax Attribute, the portion, if any, of such Tax Attribute apportioned to a SpinCo or any member of a the SpinCo Group and or treated as a carryover to the first Post-Deconsolidation Period of such SpinCo (or such member) shall be determined by UTC Parent in accordance with Treasury Regulations Sections 1.1502-21, 1.1502-211.1502‑21T, 1.1502-22, 1.1502-79 and, if applicable, 1.1502-79A. (b) No Tax Attribute with respect to any consolidated Federal Income Tax of the UTC Parent Affiliated Group, other than those described in Section 4.09(a4.08(a), and no Tax Attribute with respect to any consolidated, combined or unitary State or Foreign Income Tax, in each case, arising in respect of a Joint Return Return, shall be apportioned to any SpinCo or any member of any the SpinCo Group, except as UTC Parent (or such member of the UTC Parent Group as UTC Parent shall designate) determines is otherwise required under applicable lawTax Law. (c) UTC To the extent required by applicable Tax Law or at SpinCo’s reasonable request, Parent shall, or shall use commercially reasonable efforts to determine or cause its designee to determine determine, in its reasonable discretion, the portion, if any, of any Tax Attribute that must (absent a Final Determination to the contrary) be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.08 and applicable law and the amount of Tax basis and earnings and profits (including, for the avoidance of doubt, PTEP) to be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.08 and applicable lawTax Law, and shall provide written notice of the a proposed calculation thereof to such SpinCo as soon as reasonably practicable after UTC Parent or its designee prepares such calculation. As soon as reasonably practicable following the delivery of such calculation, SpinCo shall provide written comments on such calculation to Parent, which comments Parent shall consider in good faith in its reasonable discretion. For the absence of doubt, UTC Parent shall not be liable to any SpinCo or any member of any the SpinCo Group for any failure of any determination under this Section 4.09 4.08 to be accurate or sustained under applicable lawTax Law, including as the result of any Final Determination. The costs of any earnings and profits, Tax basis or similar study necessary or appropriate to determine the apportionment of Tax Attributes hereunder shall be borne equally by Parent and SpinCo. (d) Any written notice delivered by UTC Parent pursuant to Section 4.09(c4.08(c) shall shall, in the absence of bad faith and mathematical error, be conclusive, final and binding on the relevant SpinCo and each member of the relevant SpinCo Group and shall not be subject to dispute resolution; provided that UTC shall consider in good faith any reasonable comments the relevant SpinCo may timely provide with respect to such written noticeGroup. Except to the extent otherwise required by a change in applicable law Tax Law or pursuant to a Final Determination, no SpinCo shall not take any position (whether on a Tax Return or otherwise) that is inconsistent with the information contained in any such written notice.

Apportionment of Earnings and Profits and Tax Attributes. (a) If the UTC IAC Affiliated Group has a Tax Attribute, the portion, if any, of such Tax Attribute apportioned to a SpinCo or any member of a the SpinCo Group and treated as a carryover to the first Post-Deconsolidation Period of such SpinCo (or such member) shall be determined by UTC IAC in accordance with Treasury Regulations Sections 1.1502-21, 1.1502-21T, 1.1502-22, 1.1502-79 and, if applicable, 1.1502-79A. (b) No Tax Attribute with respect to consolidated Federal Income Tax of the UTC IAC Affiliated Group, other than those described in Section 4.09(a4.08(a), and no Tax Attribute with respect to any consolidated, combined or unitary State or Foreign Income Tax, in each case, arising in respect of a Joint Return shall be apportioned to any SpinCo or any member of any the SpinCo Group, except as UTC IAC (or such member of the UTC IAC Group as UTC IAC shall designate) determines is otherwise required under applicable law. (c) UTC IAC shall use commercially reasonable efforts to determine or cause its designee to determine the portion, if any, of any Tax Attribute that must (absent a Final Determination to the contrary) be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.08 and applicable law and the amount of Tax basis and earnings and profits (including, for the avoidance of doubt, PTEP) to be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.08 and applicable law, and shall provide written notice of the calculation thereof to such SpinCo as soon as reasonably practicable after UTC IAC or its designee prepares such calculation. For the absence of doubt, UTC IAC shall not be liable to any SpinCo or any member of any the SpinCo Group for any failure of any determination under this Section 4.09 4.08 to be accurate or sustained under applicable law, including as the result of any Final Determination. (d) Any written notice delivered by UTC IAC pursuant to Section 4.09(c4.08(c) shall be binding on the relevant SpinCo and each member of the relevant SpinCo Group and shall not be subject to dispute resolution; provided that UTC shall consider in good faith any reasonable comments the relevant SpinCo may timely provide with respect to such written notice. Except to the extent otherwise required by a change in applicable law or pursuant to a Final Determination, no SpinCo shall not take any position (whether on a Tax Return or otherwise) that is inconsistent with the information contained in any such written notice.

Apportionment of Earnings and Profits and Tax Attributes. (a) If the UTC eBay Affiliated Group has a Tax Attribute, the portion, if any, of such Tax Attribute apportioned to a SpinCo or any member the members of a the SpinCo Group and treated as a carryover to the first Post-Deconsolidation Period of such SpinCo (or such member) shall be determined by UTC eBay in accordance with Treasury Regulations Sections 1.1502-21, 1.1502-21T, 1.1502-22, 1.1502-79 and, if applicable, 1.1502-79A. (b) No Tax Attribute with respect to consolidated Federal Income Tax of the UTC eBay Affiliated Group, other than those described in Section 4.09(a4.06(a), and no Tax Attribute with respect to any consolidated, combined or unitary State state, local, or Foreign foreign Income Tax, in each case, arising in respect of a Joint Return shall be apportioned to any SpinCo or any member of any the SpinCo Group, except as UTC eBay (or such member of the UTC eBay Group as UTC eBay shall designate) determines is otherwise required under applicable law. (c) UTC eBay (or its designee) shall use commercially reasonable efforts to determine or cause its designee to determine the portion, if any, of any Tax Attribute that which must (absent a Final Determination to the contrary) be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.06 and applicable law and the amount of Tax basis and tax basis, earnings and profits (including, for the avoidance of doubt, PTEP) PTI), and “tax pools” to be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.06 and applicable law, and shall provide written notice supporting documentation of the calculation thereof to such SpinCo as soon as reasonably practicable after UTC or its designee prepares the information necessary to make such calculationcalculation becomes available to eBay. For the absence of doubt, UTC eBay shall not be liable to any SpinCo or any member of any the SpinCo Group for any failure of any determination under this Section 4.09 4.06 to be accurate or sustained under applicable law. The parties intend that, including as to the result extent such PTI is subject to allocation under Treasury Regulations Section 1.312-10 and related rules and to the extent permitted by applicable law, any PTI attributable to income inclusions with respect to which eBay is responsible for Federal Income Taxes pursuant to Section 2.02(b) or (c) shall be allocated to eBay or a member of any Final Determinationthe eBay Group. (d) Any The written notice documentation delivered by UTC eBay pursuant to Section 4.09(c4.06(c) shall be binding on the relevant SpinCo and each member of the relevant SpinCo Group and shall not be subject to dispute resolution; provided that UTC shall consider in good faith any reasonable comments the relevant SpinCo may timely provide with respect to such written notice. Except to the extent otherwise required by a change in applicable law or pursuant to a Final Determination, no SpinCo shall not take any position (whether on a Tax Return or otherwise) that is inconsistent with the information contained in any such written noticedocumentation.

Apportionment of Earnings and Profits and Tax Attributes. (a) If the UTC Parent Affiliated Group has a Tax Attribute, the portion, if any, of such Tax Attribute apportioned to a SpinCo CoalCo or any member the members of a SpinCo the CoalCo Group and treated as a carryover to the first Post-Deconsolidation Period of such SpinCo CoalCo (or such member) shall be determined by UTC Parent in accordance with Treasury Regulations Sections 1.1502-21, 1.1502-21T, 1.1502-22, 1.1502-79 and, if applicable, 1.1502-79A. (b) No Tax Attribute with respect to consolidated Federal Income Tax of the UTC Parent Affiliated Group, other than those described in Section 4.09(a4.08(a), and no Tax Attribute with respect to any consolidated, combined or unitary State state, local, or Foreign foreign Income Tax, in each case, arising in respect of a Joint Return shall be apportioned to any SpinCo CoalCo or any member of any SpinCo the CoalCo Group, except as UTC Parent (or such member of the UTC Parent Group as UTC Parent shall designate) determines is otherwise required under applicable law. (c) UTC Parent (or its designee) shall use commercially reasonable efforts to determine or cause its designee to determine the portion, if any, of any Tax Attribute that which must (absent a Final Determination to the contrary) be apportioned to a SpinCo CoalCo or any member of a SpinCo the CoalCo Group in accordance with this Section 4.09 4.08 and applicable law and the amount of Tax basis and tax basis, earnings and profits (includingprofits, for the avoidance of doubt, PTEP) and “tax pools” to be apportioned to a SpinCo CoalCo or any member of a SpinCo the CoalCo Group in accordance with this Section 4.09 4.08 and applicable law, and shall provide written notice supporting documentation of the calculation thereof to such SpinCo CoalCo as soon as reasonably practicable after UTC or its designee prepares the information necessary to make such calculationcalculation becomes available to Parent. For the absence avoidance of doubt, UTC Parent shall not be liable to any SpinCo CoalCo or any member of any SpinCo the CoalCo Group for any failure of any determination under this Section 4.09 4.08 to be accurate or sustained under applicable law, including as the result of any Final Determination. (d) Any The written notice documentation delivered by UTC Parent pursuant to Section 4.09(c4.08(c) shall be binding on the relevant SpinCo CoalCo and each member of the relevant SpinCo CoalCo Group and shall not be subject to dispute resolution; provided that UTC shall consider in good faith any reasonable comments the relevant SpinCo may timely provide with respect to such written notice. Except to the extent otherwise required by a change in applicable law or pursuant to a Final Determination, no SpinCo CoalCo shall not take any position (whether on a Tax Return or otherwise) that is inconsistent with the information contained in any such written noticedocumentation.

Apportionment of Earnings and Profits and Tax Attributes. (a) If the UTC eBay Affiliated Group has a Tax Attribute, the portion, if any, of such Tax Attribute apportioned to a SpinCo or any member the members of a the SpinCo Group and treated as a carryover to the first Post-Deconsolidation Period of such SpinCo (or such member) shall be determined by UTC eBay in accordance with Treasury Regulations Sections 1.1502-21, 1.1502-21T, 1.1502-22, 1.1502-79 and, if applicable, 1.1502-79A. (b) No Tax Attribute with respect to consolidated Federal Income Tax of the UTC eBay Affiliated Group, other than those described in Section 4.09(a4.06(a), and no Tax Attribute with respect to any consolidated, combined or unitary State state, local, or Foreign foreign Income Tax, in each case, arising in respect of a Joint Return shall be apportioned to any SpinCo or any member of any the SpinCo Group, except as UTC eBay (or such member of the UTC eBay Group as UTC eBay shall designate) determines is otherwise required under applicable law. SpinCo and eBay agree that the California R&D credit shall not be considered a Tax Attribute to which this Section 4.06 applies. (c) UTC eBay (or its designee) shall use commercially reasonable efforts to determine or cause its designee to determine the portion, if any, of any Tax Attribute that which must (absent a Final Determination to the contrary) be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.06 and applicable law and the amount of Tax basis and tax basis, earnings and profits (including, for the avoidance of doubt, PTEP) PTI), and “tax pools” to be apportioned to a SpinCo or any member of a the SpinCo Group in accordance with this Section 4.09 4.06 and applicable law, and shall provide written notice supporting documentation of the calculation thereof to such SpinCo as soon as reasonably practicable after UTC or its designee prepares the information necessary to make such calculationcalculation becomes available to eBay. For the absence of doubt, UTC eBay shall not be liable to any SpinCo or any member of any the SpinCo Group for any failure of any determination under this Section 4.09 4.06 to be accurate or sustained under applicable law. The parties intend that, including as to the result extent such PTI is subject to allocation under Treasury Regulations Section 1.312-10 and related rules and to the extent permitted by applicable law, any PTI attributable to income inclusions with respect to which eBay is responsible for Federal Income Taxes pursuant to Section 2.02(b) or (c) shall be allocated to eBay or a member of any Final Determinationthe eBay Group. (d) Any The written notice documentation delivered by UTC eBay pursuant to Section 4.09(c4.06(c) shall be binding on the relevant SpinCo and each member of the relevant SpinCo Group and shall not be subject to dispute resolution; provided that UTC shall consider in good faith any reasonable comments the relevant SpinCo may timely provide with respect to such written notice. Except to the extent otherwise required by a change in applicable law or pursuant to a Final Determination, no SpinCo shall not take any position (whether on a Tax Return or otherwise) that is inconsistent with the information contained in any such written noticedocumentation.