Incremental Tax Cost has the meaning set forth in Section 12.4.
Incremental Tax Cost shall equal the amount of IRC Sec 901 (or successor provision) foreign withholding taxes withheld under ARTICLE 6 in each year in which such tax is paid and Isis cannot obtain a corresponding cash benefit from the foreign tax credit, grossed up by the applicable withholding tax rate based on a payment to a United States Person (unless the actual applicable treaty is lower, in which case the lower withholding tax rate shall be used) to equal the pre withholding tax payment. To the extent Isis utilizes a foreign tax credit or claims a deduction in any year with respect to the taxes withheld in any year, Isis will refund to Akcea an amount equal to (i) 100% of the foreign tax credit utilized or (ii) the benefit realized by Isis resulting from the deduction, which benefit will be calculated as the sum of (a) the amount claimed as a deduction multiplied by the highest marginal statutory federal corporate tax rate applicable to Isis; plus (b) any state tax benefit of the deduction claimed by r. To assist Akcea in determining when a refund is due from Isis pursuant to the foregoing sentence, beginning with the first annual tax return for the year in which Akcea pays Isis an increased (i.e., “gross up”) payment under this Section 13.1, and each year thereafter (including, for clarity, all years in which Isis utilizes a tax credit or claims a deduction for any foreign tax that is withheld), Isis will provide Akcea with tax documentation reasonably required and requested by Akcea and, in years in which Isis utilizes the federal foreign tax credit, supporting documentation for such credit. Notwithstanding the foregoing, if the increase in the withholding tax is in any way a result of the transfer or assignment by Isis of any intellectual property or a portion of the rights under this license outside of the United States, Akcea will only be obligated to pay Isis such gross up to the extent such transfer or assignment by Isis did not cause such increase in the withholding tax.
Incremental Tax Cost means any reasonable, out of pocket post-Closing fees, expenses and costs incurred by the Sellers in connection with the Section 338 (h) (10) Election (or reasonable out of pocket post-Closing fees, expenses and costs incurred by Sellers in connection with a request by the relevant Purchaser for cooperation pursuant to Section 9.13 (a) even if no Section 338 (h) (10) Election is made) and the excess, if any, of:
(i) the aggregate amount of Tax attributable, directly or indirectly, to the Section 338 (h) (10) Election, including but not limited to any such Tax imposed under U.S. Treasury Regulation Section 1.338 (b) - 3T (h) and any such Tax attributable to the receipt of any payment by the Sellers under Section 9.13 over
(ii) the aggregate amount of Tax attributable, directly or indirectly, to the hypothetical U.S. federal, state and local income tax liability of the Sellers attributable to the deemed taxable sale of the relevant Companies for which a Section 338 (h) (10) Election is made without a Section 338 (h) (10)
Examples of Incremental Tax Cost in a sentence
The relevant Purchaser shall have the right to review and Sellers shall make available to the relevant Purchaser all relevant information relied on by Sellers to compute the Incremental Tax Cost or an estimate thereof to be paid pursuant to Section 9.13 and Sellers shall give reasonable consideration to comments made by the relevant Purchaser with respect to such computation.
The Tax liability referred to in Section 9.13 (b) shall be determined as if the gain and payment of the Incremental Tax Cost by the relevant Purchaser were the only items of income or loss on the relevant Tax returns of the Sellers and assuming the relevant Seller's U.S. federal, state and local income tax rates are the highest rates in effect in the tax year which includes the Closing Date.
For purposes of this Agreement, the Incremental Tax Cost shall be an amount equal to the sum of (A) twenty percent (20%) of the net gain from the deemed asset sale which is not taxed at capital gains rates (the “Ordinary Gain Amount”), plus (B) such additional gross-up amount, calculated based on a capital gain rate of twenty and seventy-five hundredths percent (20.75%), to take into account any Taxes imposed on the adjustment to the Aggregate Consideration determined pursuant to this Section 6.05(f).
For the avoidance of doubt, the amount determined pursuant to this Section 6.05(f) as the Incremental Tax Cost shall apply for purposes of determining the additional Aggregate Consideration, rather than any additional Tax costs that might actually be incurred by Seller’s stockholders as the result of the purchase of the Shares being treated as a deemed asset purchase rather than a stock purchase for income Tax purposes.
In no event, however, shall Buyer be authorized to file the Executed Form 8023 or any Executed State Election Forms with the IRS or any state taxing authority unless and until the Incremental Tax Cost has been paid to the Shareholders.
More Definitions of Incremental Tax Cost
Incremental Tax Cost shall have the meaning ascribed to it in Section 5.4(j).
Incremental Tax Cost will equal the amount of IRC Sec 901 (or successor provision) taxes withheld under ARTICLE 9 in each year in which such tax is paid and Akcea cannot obtain a corresponding cash benefit from the foreign tax credit, grossed up by the applicable withholding tax rate based on a payment to a United States Person (unless the actual applicable treaty is lower, in which case the lower withholding tax rate will be used) to equal the pre withholding tax payment. To the extent Akcea utilizes a [***] in any year, Akcea will [***] PTC an amount equal to (i) [***]% of the [***] or (ii) [***] Akcea resulting from the [***], which [***] will be calculated as the [***]. To assist PTC in determining when a [***] from Akcea pursuant to the foregoing sentence, beginning with the first Annual tax return for the year in which PTC [***] (i.e., “[***]”) payment under this Section 15.3.1, and each year thereafter (including, for clarity, all years in which Akcea [***] or [***]), Akcea will provide PTC with Akcea’s Annual tax returns (federal and state) and, in years in which Akcea utilizes the [***], supporting documentation for such [***]. Notwithstanding the foregoing, if any increase in the applicable withholding tax is in any way a result of the transfer or assignment by Akcea of any intellectual property or a portion of the rights under this license outside of the United States, PTC will not be obligated to [***] any [***] to the extent such transfer or assignment by Akcea caused such increase in the withholding tax. ActiveUS 169009360v.1
Incremental Tax Cost means the net excess, when and as incurred, of (1) the actual combined federal and state income tax liability of the Stockholders for the taxable year in which the Closing occurs (determined without regard to any payment under this Section 10.5(a)); over (2) the combined hypothetical federal and state income tax liability of the Stockholders determined by treating the Stockholders as if they had sold their Shares on the terms set forth herein in the absence of a Section 338(h)(10)
Incremental Tax Cost shall equal any tax amount withheld under this Section 8.10 in each year in which such tax is withheld from the Non-Paying Party. To the extent the Non-Paying Party utilizes a foreign tax credit or claims a deduction on its US Federal income tax returns related to any such Incremental Tax Cost that has the effect of reducing cash payments currently owed to the U.S. Federal government in any year, the Non-Paying Party will refund to the Paying Party an amount equal to (i) one hundred percent (100%) of Confidential 89 the foreign tax credit utilized or (ii) the cash tax benefit realized by the Non-Paying Party resulting from any related foreign tax deductions, which benefit will be calculated as the amount claimed as a deduction multiplied by the effective federal corporate tax rate applicable to the Non-Paying Party. To assist the Paying Party in determining when a refund is due from the Non-Paying Party pursuant to the foregoing sentence, beginning with the first Annual tax return for the year in which the Paying Party pays the Non-Paying Party an increased payment under this Section 8.10, and each year thereafter (including, for clarity, all years in which the Non-Paying Party utilizes a tax credit or claims a deduction for any foreign tax that is withheld and ending when either no related foreign tax credit or previously claimed deduction remains to be utilized), the Non-Paying Party will provide the Paying Party with a certification by its third party tax return preparer as to the amount of credits utilized or deductions taken against taxes owed by the Non-Paying party in the current period and the cash benefit realized.
Incremental Tax Cost means any reasonable, out of pocket post-Closing fees, expenses and costs incurred by the Sellers in connection with the Section 338 (h) (10) Election (or reasonable out of pocket post- Closing fees, expenses and costs incurred by Sellers in connection with a request by the relevant Purchaser for cooperation pursuant to Section 9.13 (a) even if no Section 338 (h) (10) Election is made) and the excess, if any, of:
(i) the aggregate amount of Tax attributable, directly or indirectly, to the Section 338 (h) (10) Election, including but not limited to any such Tax imposed under U.S. Treasury Regulation Section 1.338 (b) - 3T (h) and any such Tax attributable to the receipt of any payment by the Sellers under Section 9.13 over
(ii) the aggregate amount of Tax attributable, directly or indirectly, to the hypothetical U.S. federal, state and local income tax liability of the Sellers attributable to the deemed taxable sale of the relevant Companies for which a Section 338 (h) (10) Election is made without a Section 338 (h) (10)
Incremental Tax Cost shall equal the amount of foreign withholding taxes withheld under Article 8 in each year in which such tax is paid and Ionis cannot obtain a corresponding cash benefit from the foreign tax credit under IRC Sec 901 (or successor provision), grossed up by the applicable withholding tax rate based on a payment to a United States Person (unless the actual applicable treaty is lower, in which case the lower withholding tax rate shall be used) to equal the pre withholding tax payment. To the extent Ionis benefits from a foreign tax credit related to any Incremental Tax Cost, Ionis will refund to Dynacure an amount equal to 100% of the foreign tax credit utilized. Notwithstanding the foregoing, if the increase in the withholding tax is in any way a result of the transfer or assignment by Ionis of any intellectual property or a portion of the rights under this license outside of the United States, Dynacure will only be obligated to pay Ionis such gross up to the extent such transfer or assignment by Ionis did not cause such increase in the withholding tax.
Incremental Tax Cost means the net difference, whenever realized, between (i) the combined hypothetical federal, state and local income tax benefit to the Seller attributable to sale of Shares, computed as if the parties had made the Section 338(h)