CompUSA 2014 Annual Report Download - page 167

(v) Nothing in this Section 5.11(e) shall be deemed to create a post-Closing employer-
employee, fiduciary or
contractual relationship between Seller and any employee of the U.S. Companies who is provided with coverage under the Seller ’
s plans during
the Coverage Period.
(vi)
No provision is intended to be an amendment to any employee benefit plan maintained by the Seller or any of
the Companies and this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing
herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
5.12 Tax Matters.
The following provisions shall govern the allocation of responsibility as between the Buyer and the Seller for
certain Tax matters following the Closing Date.
(a) Tax Liability. The Seller shall be responsible for (i) all Taxes (or the non-
payment thereof) of the Companies for all
Pre-
Closing Tax Periods, (ii) all Taxes of any member of an affiliated, consolidated, combined, or unitary group of which any Company (or any
predecessor) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation §1.1502-
6 under the Code or any
analogous or similar Law, and (iii) any and all Taxes of any Person imposed on any Company as a transferee or successor, by contract or
pursuant to any Law which Taxes relate to an event or transaction occurring on or before the Closing Date. The Buyer shall be responsible for all
other Taxes of the Companies. Notwithstanding anything to the contrary herein, the Seller shall not be responsible for any Taxes (including
without limitation value added Taxes, sales and use Taxes, GST, CST, payroll Taxes, real and personal property Taxes for any Real Property or
personal property, including the Milwaukee Property, and Ohio CAT Tax), to the extent of the amount such Taxes were accrued on the Final
Closing Date Balance Sheet. Seller retains all income Tax liability for Pre-
Closing Tax Periods, which will not be accrued on the Final Closing
Date Balance Sheet.
(b) Straddle Period.
For purposes of this Agreement, in the case of any Taxes that are payable with respect to any Tax
period that includes (but does not end on) the Closing Date (a “Straddle Period”), the portion of any such Taxes that constitutes Pre-
Closing
Taxes shall: (a) in the case of Taxes that are either (i) based upon or related to, income, receipts, payroll or other items of operating income or
expense, or (ii) imposed in connection with any sale, transfer or assignment or any deemed sale, transfer or assignment of property (real or
personal, tangible or intangible), be deemed equal to the amount that would be payable if the Tax year or period ended on the Closing Date; and
(b) in the case of Taxes (other than those described in clause (a) above) that are imposed on a periodic basis or otherwise measured by the level
of any item, be deemed to be the amount of such Taxes for the entire Straddle Period (or, in the case of such Taxes determined on an arrears
basis, the amount of such Taxes for the immediately preceding Tax period) multiplied by a fraction the numerator of which is the number of
calendar days in the portion of the Straddle Period ending on and including the Closing Date and the denominator of which is the number of
calendar days in the entire Straddle
Period. For purposes of clause (a) of the preceding sentence, any exemption, deduction, credit or other item
(including, without limitation, the effect of any graduated rates of Tax) that is calculated on an annual basis shall be allocated to the portion of
the Straddle Period ending on the Closing Date on a pro rata basis determined by multiplying the total amount of such item allocated to the
Straddle Period times a fraction, the numerator of which is the number of calendar days in the portion of the Straddle Period ending on and
including the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period.
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