Common use of Transaction Tax Benefits Clause in Contracts

Transaction Tax Benefits. Without any duplication with any other payment or credit under this Agreement, the Company shall pay to each Seller such Seller’s Pro Rata Percentage of any Transaction Tax Benefit (as defined below) realized, net of any costs or expenses (including any Tax) incurred in seeking or securing such Transaction Tax Benefit. For this purpose, a “Transaction Tax Benefit” is any refund of Tax paid with respect to a Pre-Closing Tax Period or Pre-Closing Straddle Period resulting from the carryback of a Transaction Tax Deduction or a reduction of Tax liability resulting from utilization of a Transaction Tax Deduction (or any net operating loss arising out of a Transaction Tax Deduction) in a Pre-Closing Straddle Period or Pre-Closing Tax Period. A Transaction Tax Benefit shall be deemed to be realized in a taxable period if, and to the extent that, either (A) the Company receives an actual cash refund of Taxes paid as a result of the carryback to a previous taxable year of a Transaction Tax Deduction, calculated by the difference, if any, between (1) the actual refund of Taxes of the Company that is available for the Pre-Closing Tax Period and (2) the refund of Taxes of the Company that would be available for the Pre-Closing Tax Period if the Taxes of the Company for such period were computed without regard to any Transaction Tax Deductions, or (B) the Company’s cumulative liability for Taxes for a Pre-Closing Straddle Period or Pre-Closing Tax Period, calculated by excluding the relevant Transaction Tax Deduction, exceeds the Company’s actual liability for Taxes for such Pre-Closing Straddle Period or Pre-Closing Tax Period, calculated by taking into account the relevant Transaction Tax Deduction (treating such Transaction Tax Deduction as the last item claimed for any such Pre-Closing Straddle Period or Pre-Closing Tax Period). If, at any time following a payment by the Company to each Seller in respect of a Transaction Tax Benefit, the Company reasonably determines, whether as a result of a change in Legal Requirements, an administrative pronouncement, an audit, or otherwise, that the Transaction Tax Benefit giving rise to such payment should be reduced, then the Company shall notify Seller Representative of the amount of such reduction. The amount of any such reduction, plus any amount of interest and penalties imposed by a taxing authority with respect to such reduced amount, shall be satisfied first from the Tax Escrow Amount and if the Tax Escrow Amount is insufficient to satisfy such amount, then (x) directly from Compass for Compass’ Pro Rata Percentage of such amount and (y) with respect to Sellers other than Compass, from the Non-Public Stockholder Indemnification Escrow Amount, and if the Non-Public Stockholder Indemnification Escrow Amount is insufficient to satisfy such amount, then directly from Sellers (other than Compass), severally and not jointly, in the amount of such Seller’s Pro Rata Percentage of such amount.

Transaction Tax Benefits. Without any duplication with any other payment or credit under this Agreement, the Company Buyer shall pay to each Seller such Seller’s Pro Rata Percentage of any Transaction Tax Benefit (as defined below) realizedwithin ten (10) calendar days of realizing such benefit; provided, that any such payment shall be determined net of the amount of any costs Taxes for which Seller is responsible under this Agreement and any amounts related to Taxes payable by the Company or expenses (including any Taxof its Subsidiaries to the Company Shareholders or the Shareholder Representative; provided, further, that Buyer’s obligations under this Section 9.09(b) incurred in seeking or securing such Transaction Tax Benefitshall terminate upon the expiration of the Extended Survival Period. For this purpose, a “Transaction Tax Benefit” is (i) any refund of Tax paid with respect to a Pre-Closing Tax Period or Pre-Closing Straddle Period resulting from the carryback of a Transaction Tax Deduction (and any interest thereon), (ii) any reduction in the Company’s or a reduction of Tax liability any Subsidiary’s cumulative Liability for Taxes resulting from utilization of a Transaction Tax Deduction and (or iii) any net operating loss arising out other refund of a Transaction Tax Deduction) in paid with respect to a Pre-Closing Straddle Tax Period or Pre-Closing Tax Periodand any interest thereon. A Transaction Tax Benefit Deduction shall be deemed to be realized in a taxable period year if, and to the extent that, either (A1) the Company or any of its Subsidiaries receives an actual cash refund of Taxes paid as a result of the carryback carry back to a previous taxable year of a Transaction Tax Deduction, Deduction calculated by the difference, if any, between (1A) the actual refund of Taxes of the Company and/or its Subsidiaries that is available for the Pre-Closing Tax Period and (2B) the refund of Taxes of the Company and/or its Subsidiaries that would be available for the Pre-Closing Tax Period if the Taxes of the Company and/or its Subsidiaries for such period were computed without regard to any Transaction Tax Deductions, Deductions or (B2) the Company’s or any Subsidiary’s cumulative liability Liability for Taxes for a Pre-Closing Straddle Period or Pre-Closing Tax Periodsuch taxable year, calculated by excluding the relevant Transaction Tax Deduction, exceeds the Company’s or any Subsidiary’s actual liability Liability for Taxes for such Pre-Closing Straddle Period or Pre-Closing Tax Periodtaxable year, calculated by taking into account the relevant Transaction Tax Deduction (treating such Transaction Tax Deduction as the last item claimed for any such Pre-Closing Straddle Period or Pre-Closing Tax Periodtaxable year). If, at any time following a payment by the Company to each Seller in respect of a Transaction Tax Benefit, the Company reasonably determines, whether as a result of a change in Legal Requirements, an administrative pronouncement, an audit, or otherwise, that the Transaction Tax Benefit giving rise to such payment should be reduced, then the Company shall notify Seller Representative of the amount of such reduction. The amount of any such reduction, plus any amount of interest and penalties imposed by a taxing authority with respect to such reduced amount, shall be satisfied first from the Tax Escrow Amount and if the Tax Escrow Amount is insufficient to satisfy such amount, then (x) directly from Compass for Compass’ Pro Rata Percentage of such amount and (y) with respect to Sellers other than Compass, from the Non-Public Stockholder Indemnification Escrow Amount, and if the Non-Public Stockholder Indemnification Escrow Amount is insufficient to satisfy such amount, then directly from Sellers (other than Compass), severally and not jointly, in the amount of such Seller’s Pro Rata Percentage of such amount.

Transaction Tax Benefits. Without any duplication with any other payment or credit under this Agreement, the Company Parent shall pay to each Seller such Seller’s Pro Rata Percentage the Stockholders’ Representative (on behalf of the Securityholders) any Transaction Tax Benefit (as defined below) realized, net within ten (10) Business Days of any costs or expenses (including any Tax) incurred in seeking or securing realizing such benefit to the extent that such Transaction Tax BenefitBenefit is not reflected in the calculation of Closing Working Capital; provided, however, that Parent, the Surviving Corporation or any Affiliate of Parent shall be entitled to deduct from such refund or other amount payable to the Stockholders’ Representative the reasonable out-of-pocket expenses incurred by Parent, the Surviving Corporation or such Affiliate of Parent to prepare any amendments to previously filed Tax Returns necessary to obtain such refund or other amount payable to the Stockholders’ Representative. For this purpose, a “Transaction Tax Benefit” is (i) any refund of Tax paid with respect to a Pre-Closing Tax Period or Pre-Closing Straddle Period resulting from to the carryback of a Transaction Tax Deduction or a reduction of Tax liability resulting from utilization of extent attributable to a Transaction Tax Deduction (including from the carryback of Transaction Tax Deductions) (and any interest thereon) and (ii) any reduction in Company’s or any net operating loss arising out of its Subsidiaries’ cumulative liability for Taxes with respect to a Pre-Closing Tax Period resulting from a Transaction Tax Deduction) in a Pre-Closing Straddle Period or Pre-Closing Tax Period. A Transaction Tax Benefit shall be deemed to be realized in a taxable period Pre-Closing Tax Period if, and to the extent that, either (A1) the Parent, Company or its Subsidiaries receives an actual cash a refund of Taxes paid as a result of the carryback carry back to a previous taxable year of a Transaction Tax Deduction, calculated by the difference, if any, between (1) the actual refund of Taxes of the Company that is available for the Pre-Closing Tax Period and Deduction or (2) the refund of Taxes of the Company that would be available for the Pre-Closing Tax Period if the Taxes of the Company for such period were computed without regard to any Transaction Tax DeductionsParent’s, or (B) the Company’s or its Subsidiaries’ cumulative liability for Taxes for a Pre-Closing Straddle Period or Pre-Closing Tax Periodsuch taxable year, calculated by excluding the relevant Transaction Tax Deduction, exceeds the Parent’s, Company’s or its Subsidiaries’ actual liability for Taxes for such Pre-Closing Straddle Period or Pre-Closing Tax Periodtaxable year, calculated by taking into account the relevant Transaction Tax Deduction (treating such Transaction Tax Deduction as the last item claimed for any such Pre-Closing Straddle Period or Pre-Closing Tax Periodtaxable year). If, at any time following a payment by the Company to each Seller in respect of a Transaction Tax Benefit, the Company reasonably determines, whether as a result of a change in Legal Requirements, an administrative pronouncement, an audit, or otherwise, that the Transaction Tax Benefit giving rise to such payment should be reduced, then the Company shall notify Seller Representative of the amount of such reduction. The amount of any such reduction, plus any amount of interest and penalties imposed by a taxing authority with respect to such reduced amount, shall be satisfied first from the Tax Escrow Amount and if the Tax Escrow Amount is insufficient to satisfy such amount, then (x) directly from Compass for Compass’ Pro Rata Percentage of such amount and (y) with respect to Sellers other than Compass, from the Non-Public Stockholder Indemnification Escrow Amount, and if the Non-Public Stockholder Indemnification Escrow Amount is insufficient to satisfy such amount, then directly from Sellers (other than Compass), severally and not jointly, in the amount of such Seller’s Pro Rata Percentage of such amount.

Transaction Tax Benefits. Without any duplication of Section 10.01(b)(i), Parent will pay in cash as Merger Consideration to the Exchange Agent for distribution to the Stockholders and to the Surviving Corporation as Option Consideration Cash for distribution to the Optionholders (net of the amount, if any, required to be withheld under applicable Tax law with any other payment or credit under this Agreement, the Company shall pay respect to each Seller such Seller’s Pro Rata Percentage of payment) on a pro rata basis consistent with Section 2.11 any Transaction Tax Benefit (as defined below) realized), net or any portion thereof, within 30 days of any costs or expenses (including any Tax) incurred in seeking or securing realizing such Transaction Tax Benefit. For purposes of this purposeAgreement, a “Transaction Tax Benefit” is any refund reduction in Parent’s, the Surviving Corporation’s or any of Tax paid their Subsidiaries’ or Affiliates’ liability for Taxes with respect to any taxable period that includes the Closing Date (any such period, a Pre-Closing Tax Period or Pre-Closing Straddle Period “Benefit Period”) resulting from the carryback of a Transaction Tax Deduction or Pre-Closing Tax Item, as applicable; and for this purpose, a reduction in Parent’s, the Surviving Corporation’s or any of Tax their Subsidiaries’ or Affiliates’ liability resulting for Taxes will be deemed to result from utilization of a Transaction Tax Deduction (or any net operating loss arising out of a Transaction Tax Deduction) in a Pre-Closing Straddle Period or Pre-Closing Tax Period. A Transaction Tax Benefit shall be deemed to be realized in a taxable period Item if, when, and to the extent that, either (A) that Parent’s or the Company receives an actual cash refund Surviving Corporation’s or any of Taxes paid as a result of the carryback to a previous taxable year of a Transaction Tax Deduction, calculated by the difference, if any, between (1) the actual refund of Taxes of the Company that is available for the Pre-Closing Tax Period and (2) the refund of Taxes of the Company that would be available for the Pre-Closing Tax Period if the Taxes of the Company for such period were computed without regard to any Transaction Tax Deductions, or (B) the Company’s cumulative their Subsidiaries’ liability for Taxes for a Pre-Closing Straddle Period or Pre-Closing Tax Periodthe applicable Taxable period, calculated by excluding the relevant Transaction Tax DeductionDeductions or Pre-Closing Tax Items, exceeds Parent’s or the CompanySurviving Corporation’s or any of their Subsidiaries’ or Affiliates’ actual liability for Taxes for such Pre-Closing Straddle Taxable period, respectively. A Transaction Tax Benefit will be deemed to be realized if, when, and to the extent that (A) either Parent or the Surviving Corporation or any of their Subsidiaries or Affiliates, as applicable, receives in cash a refund, credit, or other return of Taxes paid in respect of the Benefit Period that results from a Transaction Tax Deduction or a Pre-Closing Tax PeriodItem, calculated or (B) a Tax Return is filed by taking into account Parent, the relevant Surviving Corporation, or any of their Subsidiaries or Affiliates, for the Benefit Period with respect to which an actual reduction in cash Tax liability of the Parent, Surviving Corporation, or any Subsidiary or Affiliate results, directly or indirectly, from a Transaction Tax Deduction (treating such Transaction Tax Deduction as the last item claimed for any such Pre-Closing Straddle Period or a Pre-Closing Tax Period)Item. If, at any time following a payment by the Company to each Seller in respect of a The Transaction Tax Benefit, the Company reasonably determines, whether as a result of a change in Legal Requirements, an administrative pronouncement, an audit, or otherwise, that the Transaction Tax Benefit giving rise Benefits to such payment should be reduced, then the Company shall notify Seller Representative of the amount of such reduction. The amount of any such reduction, plus any amount of interest and penalties imposed by a taxing authority with respect to such reduced amount, shall be satisfied first from the Tax Escrow Amount and if the Tax Escrow Amount is insufficient to satisfy such amount, then (xwhich this Section 10.01(b)(ii) directly from Compass for Compass’ Pro Rata Percentage of such amount and (y) with respect to Sellers other than Compass, from the Non-Public Stockholder Indemnification Escrow Amount, and if the Non-Public Stockholder Indemnification Escrow Amount is insufficient to satisfy such amount, then directly from Sellers (other than Compassapplies are provided on Schedule 10.01(b)(ii), severally and not jointly, in the amount of such Seller’s Pro Rata Percentage of such amount.

Transaction Tax Benefits. Without any duplication It is agreed and understood by the parties hereto that all costs, fees, or expenses that are borne by the Shareholders that are associated with any other payment the Closing and paid by the Company, including for the avoidance of doubt for this purpose the Company Transaction Expenses, and that are deductible by the Company in determining its taxable federal, state, and local income or credit under this Agreementsimilar Taxes (each, a “Deduction” and collectively, the Company shall pay “Deductions”) will, to each Seller such Sellerthe extent consistent with the Company’s Pro Rata Percentage methods of accounting for Tax purposes and applicable Tax Law, be allocated to the Pre-Closing Tax Period or the portion of any Transaction Straddle Period treated as being a Pre-Closing Tax Benefit (as defined below) realized, net Period to the extent such allocation is permitted under applicable Law at a “more likely than not” or higher level of any costs or expenses (including any Tax) incurred in seeking or securing such Transaction Tax Benefitcomfort. For this purpose, the Company will close its books and its Tax year for federal, and, if and as permitted, any state income Tax purposes as of the Closing Date to the extent necessary in order to maximize the amount of the Deductions that can be used in a Pre-Closing Tax Period or the portion of any Straddle Period that is a Pre-Closing Tax Period; provided, however, that in the case of the Company’s state corporate income Tax Returns for the calendar year that includes the Closing Date, if the Company is not permitted to file a short-period Tax Return for a Tax Period ending on the Closing Date, then all of the Deductions deductible on such Straddle Period Tax Return will be deemed to be attributable to the Pre-Closing Tax Period for such Straddle Period Tax Return to the extent permitted under applicable Law at a “Transaction Tax Benefitmore likely than not” is any refund or higher level of Tax paid comfort. Unless otherwise required under applicable Law, the parties to this Agreement agree, and agree to cause their Affiliates, to treat and report the Deductions arising in connection with respect the Closing and the transactions contemplated hereby as being attributable to a Pre-Closing Tax Period in accordance with paragraphs (a) through (c) of Example 8 of Proposed Treasury Regulations Section 1.1502-76(b)(5), without regard to whether such proposed amendments to that Treasury Regulations Section have been adopted as final or Pre-Closing Straddle Period resulting from the carryback of a Transaction Tax Deduction or a reduction of Tax liability resulting from utilization of a Transaction Tax Deduction (or any net operating loss arising out of a Transaction Tax Deduction) in a Pre-Closing Straddle Period or Pre-Closing Tax Period. A Transaction Tax Benefit shall be deemed to be realized in a taxable period if, and formally apply to the extent thatTax Period in issue. In addition, either (A) the Company receives an actual cash refund of Taxes paid as a result of the carryback to a previous taxable year of a Transaction Tax Deduction, calculated by the difference, if any, between (1) the actual refund of Taxes for any of the Company Transaction Expenses that is available for the Pre-Closing Tax Period are facilitative and (2) the refund of Taxes of the Company that would might otherwise be available for the Pre-Closing Tax Period if the Taxes of the Company for such period were computed without regard required to any Transaction Tax Deductions, or (B) the Company’s cumulative liability for Taxes for a Pre-Closing Straddle Period or Pre-Closing Tax Period, calculated by excluding the relevant Transaction Tax Deduction, exceeds the Company’s actual liability for Taxes for such Pre-Closing Straddle Period or Pre-Closing Tax Period, calculated by taking into account the relevant Transaction Tax Deduction (treating such Transaction Tax Deduction as the last item claimed for any such Pre-Closing Straddle Period or Pre-Closing Tax Period). If, at any time following a payment be capitalized by the Company to each Seller in respect of a Transaction Tax Benefitunder Treasury Regulations Section 1.263(a)-5, unless otherwise required under applicable Law, the Company reasonably determinesparties to this Agreement agree, whether as a result of a change in Legal Requirementsand agree to cause their Affiliates, an administrative pronouncement, an audit, or otherwise, that the Transaction Tax Benefit giving rise to such payment should be reduced, then cause the Company shall notify Seller Representative of to make and apply the amount of such reduction. The amount of any such reduction“safe harbor election” described in IRS Revenue Procedure 2011-29, plus any amount of interest and penalties imposed by a taxing authority 2011-18 I.R.B. 746, with respect to all such reduced amountexpenses that are eligible for such election, shall be satisfied first from unless and except as the Tax Escrow Amount and if the Tax Escrow Amount is insufficient to satisfy such amount, then (x) directly from Compass for Compass’ Pro Rata Percentage of such amount and (y) with respect to Sellers other than Compass, from the Non-Public Stockholder Indemnification Escrow Amount, and if the Non-Public Stockholder Indemnification Escrow Amount is insufficient to satisfy such amount, then directly from Sellers (other than Compass), severally and not jointly, in the amount of such Seller’s Pro Rata Percentage of such amountShareholder Representative may otherwise agree.