A "TAX BENEFIT" MEANS AN
AMOUNT BY WHICH THE TAX LIABILITY OF THE PARTY (OR GROUP OF ENTITIES INCLUDING
THE PARTY) IS REDUCED (INCLUDING, WITHOUT LIMITATION, BY DEDUCTION, REDUCTION OF
INCOME BY VIRTUE OF INCREASED TAX BASIS OR OTHERWISE, ENTITLEMENT TO REFUND,
CREDIT OR OTHERWISE PLUS ANY RELATED INTEREST RECEIVED FROM THE RELEVANT TAXING
AUTHORITY.
THE AMOUNT OF ANY TAX BENEFIT WHICH SHALL REDUCE ANY INDEMNITY CLAIM
PURSUANT TO THIS SECTION 8.3 SHALL EQUAL, (I) IN THE CASE OF A DEDUCTION OR
REDUCTION OF INCOME, PROFITS OR GAINS BY VIRTUE OF AN INCREASED TAX BASIS, OR
OTHERWISE, THE PRODUCT OF (X) THE DEDUCTION OR REDUCTION OF INCOME PROFITS OR
GAINS MULTIPLIED BY (Y) THE HIGHEST MARGINAL INCOME TAX RATE PAID BY A
CORPORATION PURSUANT TO SECTION 11(B) OF THE CODE IF SUCH INDEMNITY CLAIM
RELATES TO THE ASSETS OTHER THAN THE PARTHENON SHARES AND THE RATE OF MAINSTREAM
CORPORATION TAX IN THE U.K. IF SUCH INDEMNITY CLAIM RELATES TO THE PARTHENON
SHARES OR (II) IN THE CASE OF A REFUND OR CREDIT, THE FULL AMOUNT OF SUCH REFUND
OR CREDIT.
WHERE A PARTY HAS OTHER LOSSES, DEDUCTIONS, CREDITS OR ITEMS
AVAILABLE TO IT, THE TAX BENEFIT FROM ANY LOSSES, DEDUCTIONS, CREDITS OR ITEMS
RELATING TO THE INDEMNITY CLAIM SHALL BE DEEMED TO BE REALIZED PROPORTIONATELY
WITH ANY OTHER LOSSES, DEDUCTIONS, CREDITS OR ITEMS.
FOR THE PURPOSES OF THIS
SECTION 8.3, A TAX BENEFIT IS "CURRENTLY REALIZABLE" TO THE EXTENT IT CAN BE
REASONABLY ANTICIPATED THAT SUCH TAX BENEFIT WILL BE REALIZED IN THE CURRENT
TAXABLE PERIOD OR YEAR OR IN ANY TAX RETURN WITH RESPECT THERETO (INCLUDING
THROUGH A CARRYBACK TO A PRIOR TAXABLE PERIOD) OR IN ANY TAXABLE PERIOD OR YEAR
PRIOR TO THE DATE OF THE INDEMNITY CLAIM.
IN THE EVENT THAT THERE SHOULD BE A
DETERMINATION DISALLOWING THE TAX BENEFIT, THE INDEMNIFYING PARTY SHALL BE
LIABLE TO REFUND TO THE INDEMNIFIED PARTY THE AMOUNT OF ANY RELATED REDUCTION
PREVIOUSLY ALLOWED OR PAYMENTS PREVIOUSLY MADE TO THE INDEMNIFYING PARTY
PURSUANT TO THIS SECTION 8.3. THE AMOUNT OF THE REFUNDED REDUCTION OR PAYMENT
SHALL BE DEEMED A PAYMENT UNDER THIS SECTION 8.3 AND THUS SHALL BE PAID SUBJECT
TO ANY APPLICABLE REDUCTIONS UNDER THIS SECTION 8.3.
46
(B)
THE PARTIES AGREE THAT ANY INDEMNIFICATION
PAYMENTS MADE PURSUANT TO THIS AGREEMENT SHALL BE TREATED FOR TAX PURPOSES AS AN
ADJUSTMENT TO THE PURCHASE PRICE, UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW.
SECTION 9.
TERMINATION
9.1.
TERMINATION EVENTS.
WITHOUT PREJUDICE TO
OTHER REMEDIES WHICH MAY BE AVAILABLE TO THE PARTIES BY LAW OR THIS AGREEMENT,
THIS AGREEMENT MAY BE TERMINATED AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
ABANDONED:
(A)
BY MUTUAL CONSENT OF THE PARTIES HERETO; OR
(B)
BY ANY PARTY BY NOTICE TO THE OTHER PARTY IF
THE CLOSING SHALL NOT HAVE BEEN CONSUMMATED ON OR BEFORE MAY 31, 2003, UNLESS
EXTENDED BY WRITTEN AGREEMENT OF THE PARTIES HERETO, PROVIDED, THAT NO PARTY
HERETO MAY TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 9.1(B) IF SUCH
PARTY IS IN MATERIAL BREACH