WHEREAS, certain Options to purchase New Remedy Shares granted prior to the Mergers pursuant to the New Remedy Amended and Restated 2019 Equity Incentive Plan or the New Remedy Amended and Restated 2012 Equity Incentive Plan will, in connection with the Mergers, convert into a stock option to purchase shares of Class A Common Stock and shall not, for the avoidance of doubt, be exercised before or in connection with the Mergers or the IPO;
WHEREAS, as a result of the Mergers, as well as the contribution by New Mountain Partners V (AIV-C), L.P., a Delaware limited partnership, of Common Units to the Corporate Taxpayer immediately following the Mergers (the AIV Contribution), the Corporate Taxpayer may be entitled to utilize (or otherwise be entitled to the benefits arising out of) the Exchange Basis with respect thereto;
WHEREAS, the income, gain, loss, expense and other Tax (as defined below) items of the Corporate Taxpayer may be affected by the Tax Attributes (as defined below); and
WHEREAS, the parties to this Agreement desire to make certain arrangements with respect to the effect of the Tax Attributes on the actual liability for Taxes of the Corporate Taxpayer.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1.01 Definitions.
(a) The following terms shall have the following meanings for the purposes of this Agreement:
Actual Tax Liability means, with respect to any Taxable Year, the actual liability for U.S. federal, state and local income Taxes of (i) the Corporate Taxpayer and (ii) without duplication, OpCo, but only with respect to Taxes imposed on OpCo and allocable to the Corporate Taxpayer for such Taxable Year, and calculated assuming that Subsequently Acquired TRA Attributes do not exist.
Affiliate means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.
Agreed Rate means a per annum rate of LIBOR plus 100 basis points.
Basis Adjustment means the adjustment to the Tax basis of a Reference Asset under Sections 732 and 1012 of the Code and the Treasury Regulations promulgated thereunder (in situations where, as a result of one or more Exchanges, OpCo becomes an entity that is