Pivotal Tax Sharing Agreement. Except as otherwise provided in this Agreement, the provisions of the Pivotal Tax Sharing Agreement shall survive and remain in effect with respect to Pre-Closing Periods; provided that in the event of any conflict between the Pivotal Tax Sharing Agreements, on the one hand, and the Prior TSA, the First Amended and Restated TSA, or this Agreement (as applicable), on the other, the provisions of the Prior TSA, the First Amended and Restated TSA, or this Agreement (as applicable) shall control, and, for the avoidance of doubt: (i) If any Taxes of Pivotal attributable to a Pre-Closing Period (or portion thereof) during which Pivotal was consolidated with Dell Technologies for U.S. federal income tax purposes are paid in a Post-Closing Period, Dell Technologies shall not require Pivotal to make a payment under the Pivotal Tax Sharing Agreement in respect of such Taxes. (ii) If any Taxes of Pivotal attributable to a Pre-Closing Period (or portion thereof) during which Pivotal was not consolidated with Dell Technologies for U.S. federal income tax purposes are paid in a Post-Closing Period, Dell Technologies shall pay Pivotal an amount (in cash) sufficient to put Pivotal in the same position it would have been in had no such Tax been paid. (iii) Neither Pivotal nor VMware shall be required to make any payment to Dell Technologies in respect of Pivotal Tax Assets that Pivotal is able to use to reduce its Tax liability with respect to a Post-Closing Period during which Pivotal is not consolidated with VMware for U.S. federal income tax purposes. (iv) With respect to any Post-Closing Period during which Pivotal is consolidated with VMware for U.S. federal income tax purposes, the taxable income of Pivotal will be included in, and certain Tax Assets of Pivotal will be excluded from, the calculation of VMware Separate Tax Liability, in each case as provided in (and subject to) the definition of VMware Separate Tax Liability. (v) With respect to any Pre-Closing Periods of Pivotal, Dell Technologies shall control Tax Returns and Audits pursuant to Section 2 and Section 8.01 of this Agreement as if Pivotal were a Dell Technologies Affiliate for all such periods. (vi) Notwithstanding anything in this Agreement to the contrary, there shall be no duplication of payments with respect to Taxes or Tax benefits under this Agreement, the First Amended and Restated TSA and the Pivotal Tax Sharing Agreement.
Appears in 4 contracts
Samples: Tax Sharing Agreement (Vmware, Inc.), Consent and Support Agreement (Vmware, Inc.), Consent and Support Agreement (Dell Technologies Inc)
Pivotal Tax Sharing Agreement. Except as otherwise provided in this Agreement, the provisions of the Pivotal Tax Sharing Agreement shall survive and remain in effect with respect to Pre-Closing Pivotal Acquisition Periods; provided provided, that in the event of any conflict between the Pivotal Tax Sharing Agreements, on the one hand, and the Prior TSA, the First Amended and Restated TSA, or this Agreement (as applicable), on the other, the provisions of the Prior TSA, the First Amended and Restated TSA, or this Agreement (as applicable) shall control, and, for the avoidance of doubt:
(i) If any Taxes of Pivotal attributable to a Pre-Closing Pivotal Acquisition Period (or portion thereof) during which Pivotal was consolidated with Dell Technologies for U.S. federal income tax purposes are paid in a Post-Closing Pivotal Acquisition Period, Dell Technologies shall not require Pivotal to make a payment under the Pivotal Tax Sharing Agreement in respect of such Taxes.
(ii) If any Taxes of Pivotal attributable to a Pre-Closing Pivotal Acquisition Period (or portion thereof) during which Pivotal was not consolidated with Dell Technologies for U.S. federal income tax purposes are paid in a Post-Closing Pivotal Acquisition Period, Dell Technologies shall pay Pivotal an amount (in cash) sufficient to put Pivotal in the same position it would have been in had no such Tax been paid.
(iii) Neither Pivotal nor VMware shall be required to make any payment to Dell Technologies in respect of Pivotal Tax Assets that Pivotal is able to use to reduce its Tax liability with respect to a Post-Closing Pivotal Acquisition Period during which Pivotal is not consolidated with VMware for U.S. federal income tax purposes.
(iv) With respect to any Post-Closing Pivotal Acquisition Period during which Pivotal is consolidated with VMware for U.S. federal income tax purposes, the taxable income of Pivotal will be included in, and certain Tax Assets of Pivotal will be excluded from, the calculation of VMware Separate Tax Liability, in each case as provided in (and subject to) the definition of VMware Separate Tax Liability.
(v) With respect to any Pre-Closing Pivotal Acquisition Periods of Pivotal, Dell Technologies shall control Tax Returns and Audits pursuant to Section 2 and Section 8.01 of this Agreement as if Pivotal were a Dell Technologies Affiliate for all such periods.
(vi) Notwithstanding anything in this Agreement to the contrary, there shall be no duplication of payments with respect to Taxes or Tax benefits under this Agreement, the First Amended and Restated TSA and the Pivotal Tax Sharing Agreement. For purposes of this Section 10.02, the term “Tax” with respect to Pivotal includes any payments made as a result of the Pivotal Tax Sharing Agreement.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Dell Technologies Inc.), Separation and Distribution Agreement (Vmware, Inc.), Tax Matters Agreement (Vmware, Inc.)