U.S. Tax Provisions. This Agreement shall incorporate the U.S. tax provisions of Schedule J, which shall constitute an integral part of this Agreement; including provisions requiring Nevada JV to establish and maintain Capital Accounts for each Member and to allocate items of income, gain, deduction, loss and credit to such Capital Accounts.
U.S. Tax Provisions. The following provisions shall apply with respect to amounts herein that are subject to taxation in the United States.
(a) This Agreement is intended to comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended ("Section 409A") and shall be construed accordingly. It is the intention of the parties that payments or benefits payable under this Agreement not be subject to the additional tax or interest imposed pursuant to Section 409A. To the extent such potential payments or benefits are or could become subject to Section 409A, the parties shall cooperate to amend this Agreement with the goal of giving Executive the economic benefits described herein in a manner that does not result in such tax or interest being imposed. However, in no event shall the Company be liable to Executive for any taxes, interest, or penalties due as a result of the application of Section 409A to any payments or benefits provided hereunder.
(b) Each payment provided for in this Agreement shall, to the extent permissible under Section 409A, be deemed a separate payment for purposes of Section 409A, and any payment to be made in installments shall be treated as a series of separate payments.
(c) Payments or benefits pursuant to this Agreement shall be treated as exempt from Section 409A to the maximum extent possible under Treasury Regulation Section 1.409A-1(b)(4) and 1.409A-1(b)(9)(v), and/or under any other exemption that may be applicable, and this Agreement shall be construed accordingly. For purposes of this Agreement, phrases such as "Termination Date" and "COC Termination Date" shall, when referring to the timing of payments, refer to Executive's "separation from service," as defined for purposes of Section 409A.
(d) All taxable expenses or other reimbursements or in-kind benefits under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by Executive. Any such taxable reimbursement or any taxable in-kind benefits provided in one calendar year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year.
(e) Employee shall have no right to designate the date of any payment hereunder.
(f) Anything to the contrary herein notwithstanding, if you are determined to be a "specified employee" under Section 409A as of your separation from service, then, to the extent required by Section 409A, payments due und...
U.S. Tax Provisions. This Agreement shall incorporate the U.S. tax provisions of Schedule B, which shall constitute an integral part of this Agreement; including provisions requiring the Company to establish and maintain capital accounts for each Member and to allocate items of income, gain, deduction, loss and credit to such capital accounts. So long as the Company is treated as a partnership for federal income tax purposes, to ensure that Units are not traded on an established securities market within the meaning of Treasury Regulations Section 1.7704-1(b) or readily tradable on a secondary market or the substantial equivalent thereof within the meaning of Treasury Regulations Section 1.7704-1(c), (i) the Company shall not participate in the establishment of any such market or the inclusion of its Units thereon, and (ii) the Company shall not recognize any Transfer made on any such market by: (A) redeeming the Transferring Member (in the case of a redemption or repurchase by the Company); or (B) admitting the Transferee as a Member or otherwise recognizing any rights of the Transferee, such as a right of the Transferee to receive Company distributions (directly or indirectly) or to acquire an interest in the capital or profits of the Company; provided, however, that this Section 2.16 shall not apply if one or more of the secondary market safe harbors described in Treasury Regulations Section 1.7704-1 applies.
U.S. Tax Provisions. 1.1 In respect of any periods after Closing, BBY Hold Co may, after consulting with CPW and taking account of its opinion, choose the U.S. tax classification for any entity within the JV Group or owned by a member of the JV Group. In addition, to the extent BBY Hold Co desires to change the entity classification for an entity, and the only way to effect that change is to reorganize the entity into a newly created entity, CPW shall consent to that reorganization, unless CPW can identify a negative tax consequence to CPW or any other entity within the JV Group as a result of taking such action.
1.2 Under the terms of the SPA, JV Co was, prior to the Closing Date, and will be immediately after the Closing Date, considered a partnership for U.S. federal income tax purposes. The parties hereby covenant and agree to refrain from taking any action that is inconsistent with treating JV Co as a partnership for U.S. federal income tax purposes.
1.3 JV Co will make an election under section 6231(a)(1)(B)(ii) of the Code to have the TEFRA audit provisions of subchapter C of chapter 23 of the Code apply to JV Co. BBY Distributions shall be the “tax matters partner” within the meaning of section 6231 of the Code.
1.4 JV Co’s taxable year shall be the year ended 31 March and for purposes of determining the net profits, net losses, or any other items allocable to any period, net profits, net losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the tax matters partner using any permissible method under section 706 of the Code and the Treasury Regulations issued thereunder.
U.S. Tax Provisions. 5.1 The Company shall use commercially reasonable efforts to avoid being treated in any taxable year as a “passive foreign investment company” (“PFIC”) as such term is defined in section 1297 of the United States Internal Revenue Code of 1986, as amended (“U.S. Tax Code”). In addition, the Company shall on a yearly basis timely make available to the Investors all information that would reasonably permit the Investors to determine whether the Company is expected to be, or was, a PFIC or a “controlled foreign corporation” (“CFC”) as defined in the U.S. Tax Code for any taxable year. If an Investor believes there is a reasonable possibility that the Company will be a PFIC or CFC for any taxable year, the Company will, with such advice as may be reasonably requested from such Investor, prepare the information required to comply with applicable PFIC and / or CFC reporting requirements.
5.2 If an Investor believes it is reasonably possible that the Company could be determined to be a PFIC for any taxable year, the Company shall provide the information necessary in order for such Investor to timely and properly make an election under section 1295 of the U.S. Tax Code to treat the Company as a “qualified electing fund” (a “QEF Election”) and comply with all of the reporting requirements applicable to such a QEF Election. At the request of such Investor, the Company will obtain professional assistance experienced in matters relating to the relevant aspects of the U.S. Tax Code to the extent necessary to make the determination and to provide the information described above.
U.S. Tax Provisions. The Company represents, warrants, covenants and agrees that:
(a) The Company is a “non-U.S. branch of a foreign person” (as that term is used in Section 1.1441-4(a)(3)(ii) of the United States Treasury Regulations) for United States federal income tax purposes. The Company is a “foreign person” (as that term is used in Section 1.6041-4(a)(4) of the United States Treasury Regulations) for United States federal income tax purposes. No income received or to be received under this Agreement will be effectively connected with the conduct of a trade or business by the Company in the United States. The Company shall provide to Dealer a validly completed and signed U.S. Internal Revenue Service Form W-8BEN-E, or any successor thereto, (i) on or before the date of execution of this Agreement, (ii) upon reasonable request of Dealer and (iii) promptly upon learning that any such tax form previously provided by Dealer has become obsolete or incorrect.
U.S. Tax Provisions a. Six-month delay: For purposes of this agreement, the terms “termination”, “cessation of employment”, “cessation of services” and “termination of employment” mean a separation from service as defined in Section 409A of the Internal Revenue Code of 1986, as amended and the applicable guidance thereunder (“Section 409A”). Notwithstanding the provisions of this agreement, if on the date of Employee’s termination, Employee is a “specified employee” as defined in Section 409A, and an exception from Section 409A’s requirements is not available as to any one or more payments or installments under this agreement or otherwise, Employee shall not receive a distribution of such payment or installment, until six months after the date of termination. If Employee is subject to the restriction described in the previous sentence, Employee will be paid on the first day of the seventh month after termination an amount equal to the benefit that Employee would have been paid during such six-month period absent such restriction. In furtherance of the application of all possible exceptions to requirements of Section 409A, each payment or installment shall be treated as a separate payment in order to maximize the application of payments during the “short term deferral period” under Section 409A.
U.S. Tax Provisions. (a) The Company shall promptly notify the Investors when it becomes aware that it has become or is likely to become a PFIC and shall furnish all information, documents and assistance that any Investor may reasonably request from time to time to establish or assess whether the Company is or is likely to become a PFIC with respect to such Investor.
(b) As soon as the Company engages an external auditor for purpose of the preparation of its audited financial statements, the Company shall make due inquiry with its tax advisors on at least an annual basis regarding its status as a PFIC, and if Company is informed by its tax advisors that any such entity has become a PFIC, or that there is a likelihood of any such entity being classified as a PFIC for any taxable year, the Company shall promptly notify the Investors of such status or risk, as the case may be. The Company agrees to make available to the Investors upon request, the books and records of the Company and the other Group Companies, and to provide information to the Investors pertinent to the Company’s status or potential status as a PFIC. Upon a determination by the Company, the Investors or any taxing authority that the Company has been or is likely to become a PFIC, the Company will provide the following information to the Investors and each of its direct or indirect beneficial owners (a “PFIC Shareholder”): (i) all information reasonably available to the Company to permit such PFIC Shareholder to (a) accurately prepare its US tax returns and comply with any other reporting requirements, if any, arising from its investment in the Company and relating to the Company or any of its Subsidiaries’ classification as a PFIC and (b) make any election (including, without limitation, a “qualified electing fund” election under Section 1295 of the Code), with respect to the Company (or any of its Subsidiaries); and (ii) a completed “PFIC Annual Information Statement” as described under Treasury Regulation Section 1.1295-1(g).
U.S. Tax Provisions. The Parties agree that the provision of Schedule 9 hereto shall govern with respect to certain issues material to a Securityholder’s U.S. federal, state, and local income tax consequences relating to the ownership of interests in US JVCo.
