Common use of Post-Closing Tax Matters Clause in Contracts

Post-Closing Tax Matters. For the one year period immediately following the closing, Buyer agrees to provide to Seller such financial and other information as may reasonably be requested by Seller in order for Seller to properly and accurately complete and file, with the appropriate United States, state and local governmental agencies, all tax returns and reports required to be filed for the Company for tax periods ending on or prior to the effective date of the closing. Buyer agrees to provide such information within 45 days of Seller's request. Seller will prepare and file all required tax returns and reports for the Company for periods up to and including the effective date of the closing. Seller will be responsible for all tax liabilities of the Company for periods up to and including the effective date of the closing. Buyer will be responsible for all tax liabilities of the Company for periods subsequent to the effective date of the closing. To the extent that the Company or Buyer receives a refund of taxes related to periods prior to the effective date of the closing, Buyer or the Company will remit such tax refund and related interest, if any, to Seller within 15 days of Buyer's or the Company's receipt. For a period of seven (7) years immediately following the closing, Buyer agrees to provide to Seller such financial and other information with respect to pre-closing periods as may reasonably be requested by Seller in order for Seller to adequately and accurately respond to any inquiries, audits or examinations of pre-closing period tax returns and reports by any United States or state and local governmental agencies. Buyer agrees to provide such information within 45 days of Seller's request. In order to appropriately apportion any taxes relating to a period that includes (but that would not, but for this section, close on) the closing date, the parties hereto will, to the extent permitted by applicable law, elect with the relevant taxing authority to treat for all purposes the closing date as the last day of a taxable period of the Company, and such period shall be treated as a short period and a pre-closing period for purposes of this Agreement. In any case where applicable law does not permit the Company to treat the closing date as the last day of a short period, then for purposes of this Agreement, the portion of each such tax that is attributable to the operations of the Company for such interim period shall be (i) in the case of a tax that is not based on income or gross receipts, the total amount of such tax for the period in question multiplied by a fraction, the numerator of which is the number of days in the interim period, and the denominator of which is the total number of days in such period, and (ii) in the case of a tax that is based on income or gross receipts, the tax that would be due with respect to the interim period, if such interim period were a short period.

Post-Closing Tax Matters. For (i) To the one year period immediately following extent not reflected as a positive adjustment to the closingFinal Net Purchase Price or not included in the calculation of Working Capital, promptly upon receipt by the Company or Buyer, the Buyer agrees shall pay (net of any applicable Taxes) to provide Sellers any refund, rebate, abatement, reduction or other recovery (whether direct or indirect through a right of setoff or credit) of Taxes of the Company and any interest received thereon, attributable to Seller such financial any Pre-Closing Tax Period of the Company. The Parties agree to treat any payment made pursuant to this Section 6.8(h)(i) as an adjustment to the Purchase Price for Tax purposes. Upon request by Sellers’ Representative after the Closing Date, the Buyer shall cause the Company to use commercially reasonable efforts to obtain any refund, rebate, abatement, reduction or other recovery (whether direct or indirect through a right of setoff or credit) of Taxes of the Company and other information as may reasonably any applicable interest for any Pre-Closing Tax Period that would be requested payable to the Sellers pursuant to this Section 6.8(h)(i), including by Seller in order for Seller to properly and accurately complete and file, with filing amended Tax Returns. In the appropriate United States, state and local governmental agencies, all tax returns and reports event that the Company is subsequently required to repay to any Tax Authority any amount paid to the Sellers pursuant to the provisions of this Section 6.4(h)(i), any such amount shall be filed for repaid to Buyer, together with any interest and penalties owed in respect of such disallowed refund or credit, within ten (10) Business Days, as an adjustment to the Purchase Price. (ii) Following the Closing, unless the Sellers’ Representative provides his prior written consent, the Buyer and the Company for tax periods ending on shall not (i) amend, refile or prior otherwise modify any Tax election or Tax Return of or related to the effective date of the closing. Buyer agrees Company with respect to provide such information within 45 days of Seller's request. Seller will prepare and any Pre‑Closing Tax Period, (ii) file all required tax returns and reports for the Company for periods up to and including the effective date of the closing. Seller will be responsible for all tax liabilities a Tax Return of the Company for periods up a Pre‑Closing Tax Period in a jurisdiction where the Company has not previously filed a Tax Return, (iii) grant an extension of any applicable statute of limitations with respect to and including the effective date of the closing. Buyer will be responsible for all tax liabilities a Tax Return of the Company for periods subsequent a Pre‑Closing Tax Period, or (iv) enter into any voluntary disclosure Tax program, agreement or arrangement with any Governmental Authority or Tax Authority that relates to the effective date of the closing. To the extent that the Company Taxes or Buyer receives a refund of taxes related to periods prior to the effective date of the closing, Buyer or the Company will remit such tax refund and related interest, if any, to Seller within 15 days of Buyer's or the Company's receipt. For a period of seven (7) years immediately following the closing, Buyer agrees to provide to Seller such financial and other information with respect to pre-closing periods as may reasonably be requested by Seller in order for Seller to adequately and accurately respond to any inquiries, audits or examinations of pre-closing period tax returns and reports by any United States or state and local governmental agencies. Buyer agrees to provide such information within 45 days of Seller's request. In order to appropriately apportion any taxes relating to a period that includes (but that would not, but for this section, close on) the closing date, the parties hereto will, to the extent permitted by applicable law, elect with the relevant taxing authority to treat for all purposes the closing date as the last day of a taxable period of the Company, and such period shall be treated as a short period and a pre-closing period for purposes of this Agreement. In any case where applicable law does not permit the Company to treat the closing date as the last day of a short period, then for purposes of this Agreement, the portion of each such tax that is attributable to the operations Tax Returns of the Company for such interim period shall be a Pre-Closing Tax Period. (iiii) in For purposes of this Section 6.8, all references to the case of a tax that is not based on income or gross receiptsBuyer, the total amount of such tax for the period in question multiplied by a fractionSellers, the numerator of which is the number of days in the interim period, Sellers’ Representative and the denominator of which is the total number of days in such period, and (ii) in the case of a tax that is based on income or gross receipts, the tax that would be due with respect to the interim period, if such interim period were a short periodCompany include their respective successors.

Post-Closing Tax Matters. For (i) To the one year period immediately following the closing, Buyer agrees to provide to Seller such financial and other information extent not reflected as may reasonably be requested by Seller in order for Seller to properly and accurately complete and file, with the appropriate United States, state and local governmental agencies, all tax returns and reports required to be filed for the Company for tax periods ending on or prior a positive adjustment to the effective date Final Net Purchase Price or not included in the calculation of Working Capital, promptly upon receipt by the closing. Company, Excell USA or Buyer, the Buyer agrees shall pay (net of any applicable Taxes) to provide such information within 45 days Sellers any refund, rebate, abatement, reduction or other recovery (whether direct or indirect through a right of Seller's request. Seller will prepare and file all required tax returns and reports for the Company for periods up to and including the effective date setoff or credit) of the closing. Seller will be responsible for all tax liabilities Taxes of the Company for periods up or Excell USA and any interest received thereon, attributable to and including the effective date of the closing. Buyer will be responsible for all tax liabilities any Pre-Closing Tax Period of the Company for periods subsequent or Excell USA. The Parties agree to treat any payment made pursuant to this Section 6.8(h)(i) as an adjustment to the effective date Purchase Price for Tax purposes. Upon request by Sellers’ Representative after the Closing Date, the Buyer shall cause the Company or Excell USA to use commercially reasonable efforts to obtain any refund, rebate, abatement, reduction or other recovery (whether direct or indirect through a right of setoff or credit) of Taxes of the closingCompany or Excell USA and any applicable interest for any Pre-Closing Tax Period that would be payable to the Sellers pursuant to this Section 6.8(h)(i), including by filing amended Tax Returns. To In the extent event that the Company or Buyer receives a Excell USA is subsequently required to repay to any Tax Authority any amount paid to the Sellers pursuant to the provisions of this Section 6.4(h)(i), any such amount shall be repaid to Buyer, together with any interest and penalties owed in respect of such disallowed refund or credit, within ten (10) Business Days, as an adjustment to the Purchase Price. (ii) Following the Closing, unless the Sellers’ Representative provides his prior written consent, the Buyer, the Company and Excell USA shall not (i) amend, refile or otherwise modify any Tax election or Tax Return of taxes or related to periods prior to the effective date of the closing, Buyer or the Company will remit such tax refund and related interest, if any, to Seller within 15 days of Buyer's or the Company's receipt. For a period of seven (7) years immediately following the closing, Buyer agrees to provide to Seller such financial and other information Excell USA with respect to pre-closing periods as may reasonably be requested by Seller any Pre‑Closing Tax Period, (ii) file a Tax Return of the Company or Excell USA for a Pre‑Closing Tax Period in order for Seller to adequately and accurately respond to a jurisdiction where the Company or Excell USA has not previously filed a Tax Return, (iii) grant an extension of any inquiries, audits or examinations applicable statute of pre-closing period tax returns and reports by any United States or state and local governmental agencies. Buyer agrees to provide such information within 45 days of Seller's request. In order to appropriately apportion any taxes relating limitations with respect to a period Tax Return of the Company or Excell USA for a Pre‑Closing Tax Period, or (iv) enter into any voluntary disclosure Tax program, agreement or arrangement with any Governmental Authority or Tax Authority that includes (but that would not, but for this section, close on) the closing date, the parties hereto will, relates to the extent permitted by applicable law, elect with the relevant taxing authority to treat for all purposes the closing date as the last day of a taxable period Taxes or Tax Returns of the Company, and such period shall be treated as Company or Excell USA for a short period and a prePre-closing period for Closing Tax Period. (iii) For purposes of this Agreement. In any case where applicable law does not permit Section 6.8, all references to the Buyer, the Sellers, Sellers’ Representative, the Company to treat the closing date as the last day of a short period, then for purposes of this Agreement, the portion of each such tax that is attributable to the operations of the Company for such interim period shall be (i) in the case of a tax that is not based on income or gross receipts, the total amount of such tax for the period in question multiplied by a fraction, the numerator of which is the number of days in the interim period, and the denominator of which is the total number of days in such period, and (ii) in the case of a tax that is based on income or gross receipts, the tax that would be due with respect to the interim period, if such interim period were a short periodExcell USA include their respective successors.

Post-Closing Tax Matters. For the one year period immediately following the closing(a) Acquiror shall, Buyer agrees to provide to Seller such financial and other information as may reasonably be requested by Seller in order for Seller to properly and accurately complete at its own expense, prepare and file, with the appropriate United States, state or cause to be prepared and local governmental agenciesfiled, all tax returns and reports required Returns (including in Acquiror’s discretion any amended Returns as need to be filed for filed) of the Company for tax all taxable periods ending on or prior to the effective Effective Time that have not been filed as of the Effective Time and for all taxable periods that include the Effective Time (the “Overlap Returns”). Thirty days prior to the due date for any Overlap Return or the filing date of any amended Overlap Return, Acquiror will provide to the closingRepresentative, for his review, a copy of such Overlap Return (which shall be prepared by a national accounting firm), and Acquiror shall incorporate thereon reasonable comments consistent with applicable tax laws timely provided in writing by the Representative. (b) Acquiror will own all outstanding stock of Auto Merger Sub immediately after the Merger and Acquiror has no current plan or intention to and will not cause or permit Auto Merger Sub to issue additional equity interests to any person or entity (other than Acquiror) in connection with the Merger. Buyer agrees Immediately after the Merger, Auto Merger Sub will not have any outstanding warrants, options, convertible securities or any other type of right pursuant to provide which any person could acquire equity interests in Auto Merger Sub and Acquiror will not cause or permit Auto Merger Sub to issue any such information within 45 days of Seller's request. Seller will prepare and file all required tax returns and reports for rights in connection with the Merger. (c) Assuming the current business carried on by the Company for periods up to and including is the effective date “historic business,” following the Merger, Auto Merger Sub will continue the Company’s historic business or use a significant portion of the closingCompany’s historic business assets in a business within the meaning of Treasury Regulation Section 1.368-1(d). (d) In connection with the Merger, Acquiror will not redeem or reacquire any shares of the Acquiror Common Stock issued in the First Merger. Seller In addition, in connection with the Merger, no person related to Acquiror (within the meaning of Treasury Regulation Section 1.368-1(e)(3)) and no person acting as an intermediary for Acquiror or such a related person will acquire any of the Acquiror Common Stock issued in the First Merger. Acquiror may repurchase Unvested Acquiror Shares upon the termination of employment or services pursuant to repurchase options, vesting schedules or other conditions assigned to Acquiror in connection with the Merger. (e) Acquiror will treat all of the consideration paid to the Company Stockholders pursuant to this Agreement as consideration paid to such holders in exchange for Company Capital Stock and will not treat any portion of such consideration as compensation for services; provided, however, for any Unvested Company Shares for which a Company Stockholder has not timely filed a valid §83(b) election under the Code, Acquiror may treat consideration for Unvested Company Shares as paid in connection with services under §83 of the Code when the Unvested Acquiror Shares received in exchange therefor vest. (f) At least 90% of the fair market value of the net assets and at least 70% of the fair market value of the gross assets held by the Company immediately after the First Merger will be responsible for all tax liabilities transferred to Auto Merger Sub in the Second Merger. For purposes of this representation, the following assets will be treated as property held by the Company for periods up immediately after the First Merger, but not transferred to and including Auto Merger Sub in the effective date of the closing. Buyer will be responsible for all tax liabilities of the Company for periods subsequent to the effective date of the closing. To the extent that Second Merger: (i) assets used by the Company or Buyer receives a refund Auto Merger Sub to pay stockholders in lieu of taxes related to periods prior to the effective date fractional shares of the closing, Buyer Acquiror Common Stock or the Company will remit such tax refund and related interest, if any, to Seller within 15 days of Buyer's other expenses or the Company's receipt. For a period of seven (7) years immediately following the closing, Buyer agrees to provide to Seller such financial and other information with respect to pre-closing periods as may reasonably be requested by Seller liabilities incurred in order for Seller to adequately and accurately respond to any inquiries, audits or examinations of pre-closing period tax returns and reports by any United States or state and local governmental agencies. Buyer agrees to provide such information within 45 days of Seller's request. In order to appropriately apportion any taxes relating to a period that includes (but that would not, but for this section, close on) the closing date, the parties hereto will, to the extent permitted by applicable law, elect connection with the relevant taxing authority to treat for all purposes the closing date as the last day of a taxable period of the Company, and such period shall be treated as a short period and a pre-closing period for purposes of this Agreement. In any case where applicable law does not permit the Company to treat the closing date as the last day of a short period, then for purposes of this Agreement, the portion of each such tax that is attributable to the operations of the Company for such interim period shall be (i) in the case of a tax that is not based on income or gross receipts, the total amount of such tax for the period in question multiplied by a fraction, the numerator of which is the number of days in the interim period, and the denominator of which is the total number of days in such period, Merger; and (ii) assets used to make distributions, redemptions or other payments in respect of Company Capital Stock or rights to acquire such stock (including payments treated as such for tax purposes) that are made after the case First Merger and in contemplation of a the Merger or that are related thereto. (g) Following the Merger, Acquiror will comply, and will cause Auto Merger Sub to comply, with the record-keeping and information filing requirements of Treasury Regulation Section 1.368-3. Acquiror, Car Merger Sub and Auto Merger Sub will not take any position on any federal, state, or local income or franchise tax return, or take any other tax reporting position, that is based on income inconsistent with the treatment of the Merger as a reorganization within the meaning of Section 368(a) of the Code or gross receiptsany of the foregoing representations, the tax that would be unless otherwise required to do so by Applicable Law or if due with respect to the interim period, if such interim period were operation of Section 3.3 Acquiror distributes cash in connection with the Merger that causes the Merger to fail to so qualify as a short periodreorganization.