Common use of Contest Provisions Clause in Contracts

Contest Provisions. Each of Buyer and Seller shall promptly notify the other in writing upon receipt of notice of any pending or threatened audits or assessments with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).

Contest Provisions. Each of Buyer and Seller Purchaser shall promptly notify the other Newpark in writing upon receipt by Purchaser, any of its Affiliates or the Transferred Entities of notice of any pending pending, proposed, threatened or threatened audits actual Tax audit or assessments with respect to Tax deficiency, assessment or other claim which may affect the Taxes for which such other party (any Pre-Closing Period or any such other party’s Affiliates) may Straddle Period for which Newpark would be liable under this Agreementpursuant to Section 7.1(a). SellerNewpark shall promptly notify Purchaser in writing upon receipt by Newpark, at its expenseNewpark Texas or any of their Affiliates of notice of any pending, proposed, threatened or actual Tax audit or Tax deficiency, assessment or other claim which may affect the Taxes for any Straddle Period for which Purchaser would be liable pursuant to Section 7.1(b). Newpark shall have the sole right to control the complete defense of in any Tax audit or administrative or court proceeding (a “Tax Contest”) relating to Taxes for a taxable year or period ending on or before the any Pre-Closing Date, including responding Period and to information or document requests and managing any such audit or proceeding, and shall employ counsel or and other advisors of its choice at its expense; provided, however, provided that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of Purchaser (together with its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (icounsel and other advisors) Buyer shall be entitled, at its expensesole cost, to participate in (but not control) any proceeding relating to any such Pre-Closing Period. In the event Newpark shall have the right to control any such Tax Contest, Purchaser shall, upon request of Newpark, execute any such document and take such other action as may be reasonably requested by Newpark to obtain an extension of the period during which the taxable year or period to which such Tax Contest relates remains subject to further audit or proceedingexamination. In the event of any Tax Contest relating to a Straddle Period of the Transferred Entities, (i) to the extent the issues can be separated into those for which Newpark would be liable under Section 7.1(a) and those for which Purchaser would be liable under Section 7.1(b), then each of Newpark, on the one hand, and Purchaser, on the other, shall control the defense of those issues for which it would be liable, employing counsel and other advisors of its own choice, at its expense, (ii) Seller with respect to all other issues, Purchaser shall be entitled to control the defense employing counsel and other advisors of its choice at its expense, provided that Newpark (along with counsel and other advisors of its choice) shall be entitled to participate in the defense of and to take over such defense if Purchaser is not prosecuting the defense diligently, vigorously and professionally. Neither Purchaser nor the Transferred Entities may not agree to settle any Tax claim which may affect the Taxes for which Newpark or compromise such audit or proceeding its Affiliates would be liable under Section 7.1(a) without Buyer’s the prior written consentconsent of Newpark, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shallFurther, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or neither Newpark nor any of its Affiliates may agree to settle any Tax claim which may affect the Taxes for a taxable period which Purchaser or portion thereof ending on or before the Closing Date, (iTransferred Entities would be liable under Section 7.1(b) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s the prior written consentconsent of Purchaser, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer CNB and the Seller shall promptly notify the ------------------ each other in writing upon receipt by either of them, or any of their affiliates, or the Bank, of notice of any pending or threatened federal, state, local or foreign tax audits or assessments with respect to Taxes which may materially affect the tax liabilities of the Bank for which such other party (or any such other party’s Affiliates) may Seller would be liable under required to indemnify CNB pursuant to this Agreement. Seller, at its expense, Seller shall control have the complete defense of sole right to represent the Bank's interests in any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitledchoice, at its expense. Notwithstanding the foregoing, Seller (A) shall consult with CNB with respect to participate the resolution of any issue that would affect CNB or the Bank in any way and to any extent, in the taxable periods subject to such audit proceeding or proceedingany other taxable periods (including, but not limited to, any resolution that would result in the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards to the Bank or CNB), and (iiB) Seller may shall not settle any such issue or compromise file any amended return relating to such audit or proceeding issue, without Buyer’s written consentthe consent of CNB, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate at its expense in the defense of any claim for Taxes for a period described in Section 4.17(c) for the portion of the year or period ending on the Closing Date that is the subject of indemnification by Seller hereunder. Neither CNB nor the Bank may agree to settle any such proceedings, and (ii) Buyer may not settle claim for Taxes for the portion of the year or compromise such audit or proceeding period ending on the Closing Date that is the subject of indemnification by Seller hereunder without the prior written consent of Seller’s written consent, which consent shall not be unreasonably withheld withheld. Seller shall not settle any such claim, or delayed. With take any other action with respect to such claim, without the defense consent of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing DateCNB, if the Closing Date is in the 2009 calendar year, such defense which shall not be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)unreasonably withheld.

Contest Provisions. Each of Buyer and Seller The Acquiror shall promptly notify the other Parent in writing upon receipt by the Acquiror, any of its Affiliates, the Company or any Transferred Subsidiary of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect which might affect the Tax liabilities for which the Parent or any Affiliates of the Parent on the Closing Date (other than the Company or any Transferred Subsidiary) may be liable; provided, however, that a failure to do so shall not reduce the Parent’s liability under Section 7.03, except to the extent such failure adversely impacts the Parent’s ability to defend the audit or assessment. The Parent or its designee shall have the sole right to represent the Company’s and each Transferred Subsidiary’s interests in any Tax audit or administrative or court proceeding relating to Taxable periods ending on or before the Closing Date or otherwise relating to Taxes for which such other party the Parent (or any such Affiliates of the Parent on the Closing Date other party’s Affiliatesthan the Company or any Transferred Subsidiary) may be liable under this Agreement. Sellerliable, to settle such matters, and to employ counsel of its choice at its expense, except that Parent shall control not settle any such proceeding that would reasonably be expected to materially adversely affect the complete defense Acquiror, any of its Affiliates, the Company or any Transferred Subsidiary without the prior written consent of Acquiror (such consent not to be unreasonably withheld or delayed). In the case of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period Taxable periods ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer subject to the subsequent clauses of this sentence, the Acquiror shall be entitled, at its expense, have the right to participate represent the Company’s and each Transferred Subsidiary’s interests in any such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year such Taxable periods, but the Parent or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, designee shall be entitled to participate at its expense in any such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or attributable to the portion of any such Taxable period beginning ending on or before and ending after the Closing Date, if including the Closing Date is and, with the written consent of the Acquiror (such consent not to be unreasonably withheld or delayed) and at the Parent’s or its designee’s sole expense, the Parent or its designee may assume the control of such entire audit or proceeding, but, in such case, Parent shall not settle any such audit or proceeding that would reasonably be expected to materially adversely affect the 2009 calendar yearAcquiror, any of its Affiliates, the Company or any Transferred Subsidiary without the prior written consent of the Acquiror (such defense shall consent not to be governed by unreasonably withheld or delayed). None of the second sentence Acquiror, any of this Section 6.5(i); and if its Affiliates, the Company or any Transferred Subsidiary may settle any Tax claim for any Taxes for which the Parent (or any Affiliates of the Parent on the Closing Date is in other than the 2010 calendar yearCompany or any Transferred Subsidiary) may be liable, without the prior written consent of the Parent (such defense shall consent not to be governed by the third sentence of this Section 6.5(iunreasonably withheld or delayed).

Contest Provisions. Each of Buyer and Seller shall promptly notify After the other Closing Date, in writing upon receipt of notice the case of any pending audit, examination, claim or threatened audits or assessments other proceeding (“Proceeding”) with respect to Taxes for which such other party (Aon is or any such other party’s Affiliates) may be liable under or entitled to a refund pursuant to this Agreement. Seller, at its expense, Buyer shall control the complete defense promptly inform Aon of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceedingProceeding, and shall employ counsel afford Aon, at Aon’s expense, the opportunity to control the conduct of such Proceedings and initiate any claim for refund, file any amended return or take any other advisors of its choice at its expenseaction which Aon deems appropriate with respect to such Taxes; provided, however, that if Aon chooses to control such Proceeding and such Proceeding is reasonably expected to affect Taxes for which Buyer is liable, Buyer shall be entitled to participate at its expense. Buyer shall execute or cause to be executed powers of attorney or other documents necessary to enable Aon to take all actions desired by Aon with respect to such Proceeding to the extent such Proceeding may affect the amount of taxes for which Aon is liable or entitled to a settlement refund pursuant to this Agreement. Any Proceeding with respect to Taxes for a period which includes but does not end on the Closing Date shall be controlled by Buyer, but Aon shall be entitled to participate at its expense. Notwithstanding any provision of this Section 8.1 to the contrary, Aon shall not settle any Proceeding, initiate any claim for refund or compromise file any amended Tax Return without the prior written consent of any Buyer, which consent shall not be unreasonably withheld, if, as result of such audit Proceeding, claim for refund or proceeding would be reasonably likely to increase amended Tax Return, the Tax liability of Taxes payable by Buyer or any of its Affiliates the Company for a taxable period for which Aon is not obligated to indemnify Buyer or portion thereof beginning after the Closing Datecompany pursuant to this Section 8.1 would likely be increased. Notwithstanding any provision of this Section 8.1 to the contrary, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle any Proceeding, initiate any claim for refund or compromise such audit or proceeding file any amended return without Buyer’s the prior written consentconsent of Aon, which consent shall not be unreasonably withheld if, as a result of such Proceeding, claim for refund or delayed. Buyer shallamended Tax Return, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year which Aon is obligated to indemnify Buyer or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely company pursuant to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall 8.1 would likely be governed by the third sentence of this Section 6.5(i)increased.

Contest Provisions. Each (a) If the Internal Revenue Service or other appropriate taxing authority shall propose an adjustment in the Federal income taxes of Buyer and Seller Owner Participant for which Lessee may be required to indemnify Owner Participant pursuant to this Article IX, then Owner Participant shall promptly give Lessee prompt written notice of such adjustment: provided, however, that the failure to so notify the other Lessee shall not relieve Lessee of its obligations under this Article IX unless such failure precludes Lessee from exercising its contest rights under this Section 9.08. If requested by Lessee in writing upon receipt within 20 days, Owner Participant shall request an opinion of notice Owner Participant's Tax Counsel, the cost of any pending or threatened audits or assessments which shall be borne by Lessee, as to whether there in a reasonable basis in law and in fact for the contest of such adjustment. If the opinion is to that effect and if Lessee promptly (but no later than 15 days thereafter) requests Owner Participant to do so, Owner Participant shall contest the proposed adjustment in good faith unless the aggregate amount of the indemnity that Lessee would be required to pay with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expensethereto would not exceed $200,000; provided, however, that if a settlement or compromise Owner Participant shall determine in its sole discretion the nature of any all action to be taken to contest such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, proposed adjustment including (i) Buyer whether any action to contest such proposed adjustment shall initially be entitledby way of judicial or administrative proceedings, at its expenseor both, to participate in such audit or proceeding, and (ii) Seller may not settle whether any such proposed adjustment shall be contested by resisting payment thereof or compromise by paying the same and seeking a refund thereof and (iii) if Owner Participant shall undertake judicial action with respect to such audit proposed adjustment, the court or proceeding without Buyer’s written consent, other judicial body before which consent such action shall not be unreasonably withheld or delayedcommenced. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding Although Owner Participant agrees to consult in good faith with Lessee on matters relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely contest and to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate consider in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With good faith timely suggestions from Lessee with respect to the defense contest (including suggestions as to choice of forum), Owner Participant shall have full control over any Tax audit or administrative or court proceeding relating contest pursuant to Taxes for a taxable year or period beginning on or before this Section 9.08 and ending after shall not, except as specifically provided below, be obligated to pursue an appeal from any judicial determination. Subject to satisfaction of the Closing Dateother conditions set forth in this Section 9.08, if the Closing Date is in the 2009 calendar year, such defense Owner Participant shall be governed obligated to pursue (but only to one additional judicial level and in no event to the United States Supreme Court), with respect to a determination by a court, an appeal with respect to such determination if Owner Participant shall have received, at the second sentence expense of Lessee, an opinion of Owner Participant's Tax Counsel to the effect that the basis in law and in fact for Owner Participant's position exceeds the basis in law and in fact against such position. At any time, whether before or after commencing to take the action set forth in this Section 6.5(i); and if the Closing Date is in the 2010 calendar year9.08, Owner Participant may decline to take any such defense shall action that it would otherwise be governed by the third sentence of required to take pursuant to this Section 6.5(i9.08 with respect to all or any portion of a proposed adjustment by notifying Lessee in writing that Lessee is relieved of its obligations to indemnify Owner Participant with respect to the adjustment or such portion, as the case may be, in which event Owner Participant shall repay any indemnity amount previously advanced by Lessee with respect to such adjustment (but not any costs or expenses with respect to any contest).

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or the Acquired Companies of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax Liabilities for which such other party (or any such other party’s Affiliates) Seller may be liable under this Agreementpursuant to Section 10.01(a) or Section 10.01(e). Seller, at its expense, Seller shall control have the complete defense of right to represent each Acquired Company’s interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period Taxable periods ending on or before the Closing Date, including responding Date or otherwise relating to information Taxes for which Seller may be liable pursuant to Section 10.01(a) or document requests and managing any such audit or proceedingSection 10.01(e), and shall to employ counsel or other advisors of its choice at its expense; provided, howeverthat Buyer shall have the right to participate in any such proceeding with respect to Taxes imposed solely on the Acquired Companies that are not imposed or calculated on a combined, consolidated or unitary basis with Seller or any Affiliate of Seller; and provided, further, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or neither Seller nor any of its Affiliates may settle any such Tax claim that could reasonably be expected to affect the amount of Taxes for which the Acquired Companies are liable after the Closing Date without the written consent of Buyer, which consent may be withheld in the reasonable discretion of Buyer. In the case of a taxable Taxable period or portion thereof beginning before and ending after the Closing Date, (i) Buyer Seller shall be entitled, entitled to participate at its expense, to participate expense in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or attributable to the portion of such period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date. None of Buyer, (iany of its Affiliates or any Acquired Company may settle any Tax claim for any Taxes for which Seller may be liable pursuant to Section 10.01(a) or Section 10.01(e), without the prior written consent of Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not may be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence reasonable discretion of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Seller.

Contest Provisions. Each of In the event that after the Closing any Governmental Authority informs either the Seller or the Buyer and Seller shall promptly notify (or the other in writing upon receipt of notice Company) of any pending proposed or threatened audits actual audit or assessments examination with respect to Taxes for which such (a “Tax Audit”) with respect to any Pre-Closing Period, the party so informed shall notify each other party of such matter within twenty (20) Business Days after receiving such notice. No failure or delay in informing the other party shall reduce or otherwise affect the obligations or liabilities of any party hereto, except to the extent such other failure or delay shall have adversely affected the recipient party’s Affiliates) may ability to defend against any liability or claim with respect to such Taxes. Any notice shall be liable under this Agreementaccompanied by a copy of any written notice or other document received from the applicable Governmental Authority with respect to such matter. SellerSo long as the Seller diligently does so, the Seller shall have the right to control, at its expense, shall control the complete defense contest of the portions of any such Tax audit Audit for any Pre-Closing Period or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expenseStraddle Period; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely the Seller elects to increase control the Tax liability of contest, the Buyer or any of its Affiliates for a taxable period or portion thereof beginning after and the Closing Date, (i) Buyer Company shall be entitledhave the right, at its their expense, to participate in such audit or proceedingcontest. For avoidance of doubt, the Seller shall have the right to control the contest of the portion of any Tax Audits for all Straddle Periods although the Buyer and (ii) the Company shall have the right, at the Buyer’s expense, to participate in those portions of such Tax Audits that relate to Taxes of the Company for which the Buyer is required to indemnify under Section 7.7(a). The Seller may shall not settle or compromise such audit any issue related to Taxes of the Company which settlement or proceeding compromise would have any adverse impact on the liability for Taxes of the Buyer or the Company which is not subject to indemnification by Seller under this Section 7.7, without the Buyer’s written consent, consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed). Similarly, the Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit any issue related to Taxes of the Company which settlement or proceeding compromise would have any adverse impact on the liability for Taxes of the Seller or the Company which is not subject to indemnification by Buyer under this Section 7.7, without the Seller’s written consent, consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).

Contest Provisions. Each of Buyer (i) Parent and Seller the Surviving Company shall promptly notify the other Stockholders’ Representative in writing upon receipt by Parent, the Surviving Company or any of their Affiliates of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments with respect which may affect the Tax liabilities of the Surviving Company for which any Company Indemnitor may be required to indemnify Parent pursuant to this Agreement (each, a “Tax Claim”). The Stockholders’ Representative shall have the right to represent the Surviving Company interests in and manage any Tax Claim that relates solely to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending periods that end on or before prior to the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely in order to increase assume the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, defense: (i) Buyer the Stockholders’ Representative must provide such written notice within ten (10) days after Parent giving notice of the assertion of any claim, or the commencement of any Tax Claim subject to this Section 5.9(b)(i), (ii) the defense of such Tax Claim can be conducted separately from the defense of any claim, suit, action or proceedings not subject to this Section 5.9(b)(i), (iii) the Pre-Closing Taxes which respect to which the Tax Claim relates must be less than the amount remaining in the Escrow Fund (or any Aggregate Milestone Merger Consideration that has been earned but not yet paid), less any other unresolved Asserted Damages Amount, (iv) the Stockholders’ Representative must select counsel that is reasonably acceptable to Parent, (v) the Stockholders’ Representative shall be entitled, at its expense, thereafter consult with Parent upon Parent’s reasonable request for such consultation from time to participate in time with respect to such audit or proceedingTax Claim, and (iivi) Seller may not settle or compromise such audit or proceeding the Stockholders’ Representative shall not, without BuyerParent’s prior written consent, consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed. Buyer shall), at its expense, control the complete defense of agree to any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. Each of Buyer and Seller TriZetto shall promptly notify the other IMS in writing upon receipt by TriZetto, any of its affiliates or Erisco of notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments with respect to Taxes which may materially affect the tax liabilities of Erisco for which IMS would be required to indemnify TriZetto pursuant to Section 8.1(a), PROVIDED that failure to comply with this provision shall not affect TriZetto's right to indemnification hereunder, except to the extent that IMS is prejudiced by such other party (or failure. IMS shall have the sole right to represent Erisco's interests in any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided. Notwithstanding the foregoing, howeverIMS shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which would adversely affect the liability for Taxes of TriZetto or Erisco for any period after the Closing Date to any extent (including, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) without the prior written consent of TriZetto. Such consent shall not be unreasonably withheld, and shall not be necessary to the extent that if a settlement or compromise IMS has indemnified TriZetto against the effects of any such audit or proceeding would settlement. IMS shall be reasonably likely entitled to increase participate at its expense in the Tax liability defense of Buyer or any of its Affiliates claim for Taxes for a taxable year or period or portion thereof beginning ending after the Closing DateDate which may be the subject of indemnification by IMS pursuant to Section 8.1(a) and, (i) Buyer shall be entitledwith the written consent of TriZetto, and at its sole expense, may assume the entire defense of such tax claim. Neither TriZetto nor Erisco may agree to participate in such audit settle any tax claim for the portion of the year or proceeding, and (iiperiod ending on the Closing Date which may be the subject of indemnification by IMS under Section 8.1(a) Seller may not settle or compromise such audit or proceeding without Buyer’s the prior written consentconsent of IMS, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or the Companies of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which may affect any Tax liability for which Seller is liable pursuant to Section 5.7 or Section 8.2(a), provided that failure to comply with this provision shall not affect Buyer's right to indemnification hereunder except to the extent such other party (or failure impairs Seller's ability to contest any such other party’s Affiliates) may be liable under Tax liabilities. Except as otherwise provided in this Agreement. Sellerparagraph, at its expense, Seller shall control have the complete defense of sole right to represent each Company's interests in any Tax audit or administrative or court proceeding relating to taxable periods ending on or before the Closing Date (and any audit or proceeding relating to the determination of the Closing NOL Carryovers), and to employ counsel of its choice at its expense. Seller shall keep Buyer reasonably informed as to any material change or development in the status of any such audit or proceeding to the extent such change or development would reasonably be expected to have a material effect on the Taxes of the Companies, or any Affiliate thereof, for a any period after the Closing Date. Seller shall have the sole right to settle, either administratively or after the commencement of litigation, any proceeding relating to Taxes of either Company for any taxable year or period ending on or before the Closing Date, including responding Date (and any proceeding relating to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors the determination of its choice at its expensethe Closing NOL Carryovers); provided, however, that if a settlement or compromise of Seller shall not settle any such audit or proceeding claim for Taxes which would be reasonably likely to increase have an adverse effect on the Tax liability of Buyer Companies, or any of its Affiliates Affiliate thereof, for a taxable period or portion thereof beginning periods after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding Date without the prior written consent of Buyer’s written consent, which consent shall not be unreasonably withheld or delayedand shall not be withheld, in any event, if Seller has indemnified Buyer against the effects of any such settlement. Buyer shallIn the case of any Straddle Period, Seller shall be entitled to participate at its expense, control the complete defense of expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending on and including the Closing Date; providedDate and, howeverwith the written consent of Buyer, that if a settlement or compromise and at Seller's sole expense, may assume the entire control of any such audit or proceeding would be reasonably likely to increase the Tax liability proceeding. None of Seller or Buyer, any of its Affiliates for a taxable period or portion thereof ending on either of the Companies may agree to settle any Tax claim which may be the subject of indemnification by Seller under Section 5.7 or before paragraph (a) of this Section 8.2 without the Closing Date, (i) prior written consent of Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not may be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence sole discretion of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Seller.

Contest Provisions. Each of Buyer Subject to the cooperation provisions in Section 4.2 and Seller Article V hereof and to this Section 4.3, Torchmark shall promptly notify have full responsibility and discretion in the other in writing upon receipt of notice handling of any pending or threatened audits or assessments Tax controversy with respect to Taxes any Tax Return which Torchmark is required to file or cause to be filed hereunder, including, without limitation, an audit, a protest to the Appeals Division of the IRS, other administrative appeals, and litigation in Tax Court or any other court of competent jurisdiction (a "Tax Controversy"). In the event a Tax Controversy involves items that could give rise to a payment of Tax for which such other party (or any such other party’s Affiliates) may WRFI would be liable under this Agreement. Sellerhereunder or otherwise or a refund of Tax for which WRFI would be entitled hereunder or otherwise (a "WRFI Item") and also involves items that could give rise to a payment of Tax for which Torchmark would be liable or a refund of Tax for which Torchmark would be entitled hereunder or otherwise (a "Torchmark Item"), at its expense, then Torchmark shall control advise and consult with WRFI with respect to such Tax Controversy and any proposed settlement thereof which affects the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceedingWRFI Items, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding any WRFI Item without Buyer’s written consent, WRFI's consent (which consent shall may not be unreasonably withheld or delayedwithheld). Buyer shallWRFI and its representatives, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its WRFI's expense, shall be entitled to participate in such proceedingsall conferences, meetings, or proceedings with any Tax Authority, the subject matter of which includes or affects any WRFI Item, and (ii) Buyer may not settle shall be entitled to participate in all appearances before any court, the subject matter of which includes or compromise such audit affects any WRFI Item. The right of WRFI to participate shall include, without limitation, discretion to control the content of documentation, protests, memoranda of fact and law and briefs, the conduct of oral arguments or proceeding without Seller’s written consentpresentations, which consent shall not be unreasonably withheld or delayed. With the selection of witnesses, and the negotiation of stipulations of fact with respect to the defense of any WRFI Items. In the event a Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning Controversy involves only WRFI Items, and has no affect on or before Torchmark Items, then upon request by WRFI, WRFI shall have full responsibility and ending after the Closing Date, if the Closing Date is discretion in the 2009 calendar yearhandling, at WRFI's expense, of such defense shall be governed by the second sentence of this Tax Controversy with Torchmark's cooperation as set forth in Section 6.5(i); 4.2 and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Article V hereof.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer or any of its Affiliates (including the Transferred Subsidiaries) of notice of any pending or threatened Tax audits or assessments with respect to Taxes which may affect the Tax Liabilities for which Seller would be required to indemnify Buyer pursuant to Section 5.6(a) or (b), PROVIDED that any failure to comply with this provision shall not affect Buyer's right to indemnification hereunder to the extent such other party (failure does not prejudice Seller's ability to defend such audit or any assessment or increases the amount of such other party’s Affiliates) may be liable under this AgreementTaxes. Seller, at its expense, Seller shall control have the complete defense of sole right to represent the relevant Transferred Subsidiary's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Pre-Closing Date, including responding to information or document requests and managing any such audit or proceedingPeriods, and shall to employ counsel or other advisors of its choice at its expense; provided, however, except that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, have the sole right to participate represent the Transferred Subsidiaries in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the issues that might give rise to an indemnification obligation of Buyer with respect to any Pre-Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely Periods pursuant to increase the Tax liability of Section 5.6(b). Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate settle either administratively or after the commencement of litigation without the consent of Buyer any claim for Taxes related to Tax audits or proceedings described in Schedule 5.6(h). Notwithstanding the foregoing, Seller shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes represented by Seller that is not described in Schedule 5.6(h) and that may materially affect the liability for Taxes of Buyer or any Transferred Subsidiary for any period ending after the Closing Date to any extent (including, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards, except for such proceedings, and (iireductions of loss or credit carryforward realized in a Pre-Closing Period) Buyer may not settle or compromise such audit or proceeding without Seller’s the prior written consentconsent of Buyer, which consent shall not be unreasonably withheld or delayedwithheld. With respect Such consent shall not be necessary to the extent that Seller has agreed in writing to indemnify Buyer against the effects of any such settlement. Seller shall be entitled to participate at its expense in the defense of any Tax audit or administrative or court proceeding relating to claim for Taxes for a taxable year or period beginning on or before and ending after the Closing DateDate which may be the subject of indemnification by Seller pursuant to Section 5.6(b) and, if with the written consent of Buyer, and at its sole expense, may assume the entire defense of such Tax claim. Neither Buyer nor any Transferred Subsidiary may agree to settle any Tax claim for the portion of the year or period ending on the Closing Date is in which may be the 2009 calendar yearsubject of indemnification by Seller under Section 5.6(b) without the prior written consent of Seller, such defense which consent shall not be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)unreasonably withheld.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Tribune in ------------------ writing upon receipt by Buyer, any of its Affiliates, the Company or any Subsidiary of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Tribune may be liable under this Agreementpursuant to Section 11.1(a). Seller, at its expense, --------------- Tribune shall control have the complete defense of sole right to represent the Company's and each Subsidiary's interests in any Tax audit or administrative or court proceeding relating to taxable periods ending on or before the Closing Date or otherwise relating to Taxes for which Tribune may be liable pursuant to Section 11.1(a), --------------- and to employ counsel of its choice at its expense. In the case of a Straddle Period, Buyer shall control any audit, administrative or court proceeding, but Tribune shall be entitled to participate at its expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes attributable to the portion of such Straddle Period ending on and including the Closing Date and, with the written consent of Buyer, and at Tribune's sole expense, may assume the entire control of such audit or proceeding. None of Buyer, any of its Affiliates, the Company or any Subsidiary may settle any Tax claim for any taxable year or period ending on or before the Closing DateDate (or for any Straddle Period) which may be the subject of indemnification by Tribune under Section 11.1(a), including responding or otherwise relating to information or document requests and managing any such audit or proceedingTaxes which Tribune may be --------------- liable pursuant to Section 11.1(a), and shall employ counsel or other advisors without the prior written consent of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent--------------- Tribune, which consent shall not may be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence sole discretion of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Tribune.

Contest Provisions. Each of Buyer and Seller Purchaser shall promptly notify the other Seller in writing upon receipt by Purchaser, any of its Affiliates, or any of the Companies of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Seller may be liable under pursuant to paragraph (a) of this AgreementSection 5.14 (including, but not limited to, notice of any pending or threatened audits, examinations or assessments involving the Owner Participant or the Partnership which might affect the Tax liabilities for which Seller may be liable pursuant to paragraph (a) of this Section 5.14). Seller, at its expense, Seller shall control have the complete defense sole right to represent each of the Company's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing DateDate or otherwise relating to Taxes for which Seller may be liable pursuant to paragraph (a) of this Section 5.14 (including, including responding but not limited to, the right to information exercise any participation rights the Company may have (either contractually or document requests and managing under applicable Law) in any such Tax audit or proceedingadministrative or court proceeding involving the Owner Participant or the Partnership which might affect the Tax liabilities for which Seller may be liable pursuant to paragraph (a) of this Section 5.14), and shall to employ counsel or other advisors of its choice at its expense; provided. In the case of a Straddle Period, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer Seller shall be entitled, entitled to participate at its expense, to participate sole expense in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending on and including the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, Date (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of including any Tax audit or administrative or court proceeding involving the Owner Participant or Partnership, to the extent either Company is entitled to participate in such Tax audit or administrative or court proceeding (either contractually or and under applicable Law)) and, with the written consent of Purchaser, and at Seller's sole expense, may assume the entire control of such audit or proceeding (or, in the case of any audit or proceeding involving the Owner Participant or Partnership, the entire participation by either Company in such audit or proceeding). None of Purchaser, any of its Affiliates, or any of the Companies may settle any Tax claim (or consent to or otherwise exercise the rights of either Company (contractually or under applicable Law) with respect to the settlement of any Tax claim by the Owner Participant or the Partnership) relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall which Seller may be governed by the second sentence liable pursuant to paragraph (a) of this Section 6.5(i); and if 5.14 without the Closing Date is prior written consent of Seller, which consent may be withheld in the 2010 calendar year, such defense shall be governed by the third sentence sole discretion of this Section 6.5(i)Seller.

Contest Provisions. Each of Buyer and Seller Acquiror shall promptly notify the other Parent, as soon as reasonably practicable, in writing upon receipt by Acquiror, any of its Affiliates, or any Target Entity of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (Parent or any such other party’s Affiliates) of its Affiliates may be liable under this Agreementliable. Seller, at Parent or its expense, designee shall control have the complete defense sole right to represent the interests of any Target Entity in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing DateDate or otherwise relating to Taxes for which Parent or any of its Affiliates may be liable, including responding to information or document requests and managing any settle such audit or proceedingmatters, and shall to employ counsel or other advisors of its choice at its expense; providedprovided that none of Parent, howeverits designee, that if a settlement or its Affiliates may concede, settle or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or claim for any Taxes for which Acquiror, any of its Affiliates for a taxable period Affiliates, or portion thereof beginning after any Target Entity may be liable, without the Closing Dateprior written consent of Acquiror (such consent not to be unreasonably withheld), (i) Buyer and Acquiror or its designee shall be entitled, entitled to participate at its expenseexpense in any such Tax audit or administrative or court proceeding. In the case of a Straddle Period, Parent or its designee shall be entitled to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending before the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller Date and for which Parent or any of its Affiliates for a taxable period may be liable, and with the written consent of Acquiror (such consent not to be unreasonably withheld) and at Parent’s or portion thereof ending on or before the Closing Date, (i) Seller, at its designee’s sole expense, shall be entitled Parent or its designee may assume the entire control of such audit or proceeding, subject to participate the rights of Acquiror in the prior sentence. None of Acquiror, any of its Affiliates or any Target Entities (and, where relevant, a “partnership representative” of any such proceedingsentity) may concede, and (ii) Buyer may not settle or compromise any Tax claim for any Taxes for which Parent or any of its Affiliates may be liable, without the prior written consent of Parent (such audit or proceeding without Seller’s written consent, which consent shall not to be unreasonably withheld withheld). Nothing in this Agreement shall prevent Acquiror, in the event of any “partnership” audit, examination or delayed. With assessment relating to any Tax matters of any Target Entity, from causing the applicable “partnership representative” to make the “push-out” election under Section 6226 of the Code (to the extent permitted under applicable law) in its sole discretion, and Acquiror shall cause such election to be made if Parent so requests with respect to any audit, examination or assessment which might affect the defense Tax liabilities for which Parent or any of its Affiliates may be liable. In the event of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before conflict between ARTICLE X and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year7.02, such defense shall be governed by the third sentence of this Section 6.5(i)7.02 shall control.

Contest Provisions. Each If, after the Closing, the Purchaser or any of Buyer and Seller shall promptly notify the other in writing upon receipt of its Affiliates receives written notice from a Governmental Authority of any pending or threatened Tax audits or assessments with respect to or other disputes, assessments or proceedings concerning Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit Company or administrative or court proceeding relating to Taxes Subsidiary for a taxable year or period ending on or before prior to the Closing DateDate or a Straddle Period and with respect to which the Sellers are responsible under this Agreement (a “Tax Proceeding”), including responding the Purchaser shall promptly notify the Sellers of the Tax Proceeding in writing and in any event within ten (10) days after receiving the notice of the Tax Proceeding; provided, that the failure of Purchaser to information timely give such notice shall not relieve the Sellers of any of their obligations under this Agreement, except to the extent that the Sellers are actually and materially prejudiced by such failure. The Sellers shall have the right to elect to control any Tax Proceeding relating solely to a taxable period ending on or document requests prior to the Closing Date and managing any such audit or proceeding, and shall to employ counsel or other advisors of its their choice at its their expense; provided, however, that if a settlement or compromise (A) Sellers shall keep Purchaser reasonably informed regarding any material development of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer Proceeding and shall be entitled, at its expense, permit Purchaser to participate in such audit or proceedingTax Proceeding at its own expense (to the extent such participation is permitted by the applicable Governmental Authority), and (iiB) Seller may Sellers shall not settle settle, compromise or compromise abandon any such audit or proceeding Tax Proceeding without Buyer’s the prior written consentconsent of Purchaser, which consent shall not be unreasonably withheld withheld, conditioned or delayed. Buyer shall, at its expense, control In the complete defense case of (i) any Tax audit or administrative or court proceeding Proceeding relating to Taxes for a taxable year period ending on or period beginning after prior to the Closing DateDate that Sellers do not timely elect to assume the control of or (ii) any Tax Proceeding relating to any Straddle Period, Purchaser shall have the right to control such Tax Proceeding and to employ counsel of its choice; provided, however, that if a settlement or compromise (A) Purchaser shall keep Sellers reasonably informed regarding any material development of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, Proceeding and shall be entitled permit Sellers to participate in such proceedingsTax Proceeding at their own expense (to the extent such participation is permitted by the applicable Governmental Authority), and (iiB) Buyer may Purchaser shall not settle settle, compromise or compromise abandon any such audit or proceeding Tax Proceeding without Seller’s obtaining the prior written consent, consent of Sellers (which consent shall not be unreasonably withheld withheld, conditioned or delayed). With Notwithstanding the foregoing, the rights of the Sellers with respect to any Tax Proceeding shall be subject to any rights of the defense insurer with respect to such Tax Proceeding pursuant to the Representations and Warranties Insurance Policy, unless the Sellers agree that the Sellers will be fully liable for any Losses resulting from such Tax Proceeding. This Section 8.3 shall not apply to the audit of any Tax Seller Consolidated Return and the Sellers will have the exclusive right to control, at its own expense, any audit of a Seller Consolidated Return, including, without limitation, any disposition or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, settlement of such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)audit.

Contest Provisions. Each of Buyer and Seller shall promptly notify If, subsequent to the other in writing upon receipt of Closing, Parent or the Company receives notice of any pending or threatened audits or assessments a Tax Contest with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes Return of the Company for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, then within fifteen (15) days after receipt of such notice, Parent shall notify the Equityholders’ Representative of such notice. Parent shall have the right to control the conduct and resolution of any Tax Contest, provided, however, that, to the extent such Tax Contest (i) Seller, at its expense, shall be could give rise to Taxes for which Parent is entitled to participate in such proceedingsindemnification under Article VIII (taking into account the limitations set forth therein), and (ii) Buyer such Tax Contest relates solely to one or more taxable periods ending on or prior to the Closing Date, the Equityholders’ Representative may elect to control the conduct and resolution of such Tax Contest and if such election is made, the Equityholders’ Representative shall keep Parent reasonably fully and timely informed of the progress of such Tax Contest and shall not settle effect any such settlement or compromise of such audit or proceeding Tax Contest without Sellerobtaining the Parent’s prior written consentconsent thereto, which consent shall not be unreasonably withheld withheld, conditioned or delayed. With respect ; provided, further, that, to the defense of any extent (i) (A) such Tax audit or administrative or court proceeding relating Contest could give rise to Taxes for a which Parent is entitled to indemnification under Article VIII (taking into account the limitations set forth therein), and (B) such Tax Contest does not relate solely to one or more taxable year or period beginning periods ending on or before and ending after prior to the Closing Date, if or (ii) the Equityholders’ Representative declines to control the conduct and resolution of any Tax Contest described in the preceding proviso, Parent shall have the right to control the conduct and resolution of such Tax Contest, shall keep the Equityholders’ Representative reasonably fully and timely informed of the progress of such Tax Contest to the extent relating to any Tax period or portion thereof ending on or before the Closing Date is in and shall not effect any such settlement or compromise of such Tax Contest to the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if extent relating to any Tax period or portion thereof ending on or before the Closing Date is in without obtaining the 2010 calendar yearEquityholders’ Representative’s prior written consent thereto, such defense which shall not be governed unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, any failure by Parent to provide notice of a Tax Contest shall not affect Parent’s right to indemnification pursuant to Article VIII, except to the third sentence of this Section 6.5(i)extent the Equityholders’ Representative or the Equityholders were actually and materially prejudiced as a result thereof.

Contest Provisions. Each of Buyer and Seller Parent or the Company shall promptly notify the other Stockholders’ Agent in writing upon receipt by Parent or any of its Affiliates or the Company or any of its Affiliates, of notice of any pending or threatened federal, state, local, or other foreign income or franchise Tax audits or assessments with respect to Taxes which may materially affect the Tax liabilities of the Company or any Subsidiary for which such other party (or any such other party’s Affiliates) may the Former Securityholders would be liable under required to indemnify Parent pursuant to this Agreement. Seller, at its expense, Parent shall have the sole right to control the complete defense representation of the Company’s or any Subsidiary’s interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period Tax periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of . The Stockholders’ Agent shall be entitled to participate at its expense in any such audit proceeding, subject to the control of Parent. Notwithstanding the foregoing, Parent shall not be entitled to settle, either administratively or proceeding would be reasonably likely after the commencement of litigation, any claim for Taxes relating to increase Tax periods ending on or before the Closing Date which may materially affect the Tax liability liabilities of Buyer the Company or any of its Affiliates Subsidiaries, or Parent or any of its Subsidiaries, for a taxable period or portion thereof beginning after which the Closing Date, (i) Buyer shall Former Securityholders would be entitled, at its expense, required to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding indemnify Parent without Buyer’s the prior written consentconsent of the Stockholders’ Agent, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, The Stockholders’ Agent shall be entitled to participate at its expense in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to claim for Taxes for a taxable year or Tax period beginning on or before and ending after the Closing Date, if Date which may be the Closing Date is in the 2009 calendar year, such defense shall be governed subject of indemnification by the second sentence Former Securityholders, subject to the control of this Section 6.5(i); Parent, and, with the written consent of Parent, and if at the Closing Date is in sole expense of the 2010 calendar yearFormer Securityholders, may assume the entire defense of such defense shall be governed by the third sentence of this Section 6.5(i)Tax claim.

Contest Provisions. Each of Seller and Buyer and Seller shall promptly notify the other Party in writing upon receipt (including receipt by Affiliates of Seller or Buyer) of any written notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating that pertains to Taxes for or is reasonably expected to affect a taxable year Company Group Member with respect to any Pre-Closing Tax Period or period ending on or before any Straddle Period. With respect to such proceeding that pertain to a Pre-Closing Tax Period, Seller shall have the Closing Date, including responding sole right to information or document requests and managing control any such audit Tax audit, examination, assessment or proceeding, and shall to employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of and its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer representatives shall be entitledpermitted, at its Buyer’s expense, to be present at, and participate in in, any such audit audit, examination, assessment or proceeding (except to the extent such audit, examination, assessment or proceeding pertains to a Tax Return of a Consolidated Tax Group or to the Tax information of any Seller Group Member. With respect to such proceeding that pertain to a Straddle Period, Buyer shall have the sole right to control any such Tax audit, examination, assessment or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, to employ counsel of its choice at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of Seller and its representatives shall be permitted, at Seller’s expense, to be present at, and participate in, any such audit audit, examination, assessment or proceeding would be reasonably likely (except to increase the extent such audit, examination, assessment or proceeding pertains to a Tax Return of a Consolidated Tax Group or to the Tax liability information of Buyer or an Affiliate of Buyer other than a Company Group Member). Neither Seller nor any Affiliate of Seller or (with respect to a proceeding involving a Pre-Closing Tax Period), and neither Buyer nor any Affiliate of its Affiliates for Buyer (with respect to a taxable period or portion thereof ending on or before the Closing Date, (iproceeding involving a Straddle Period) Seller, at its expense, shall be entitled to participate in such proceedingssettle, and either administratively or after the commencement of litigation, any claim for Taxes which could reasonably be expected to adversely affect the liability for Taxes for which the other party may be liable under this Agreement without the prior written consent of the other party (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld delayed, conditioned or delayed. With withheld); provided, however, each of Seller and Buyer shall be permitted to settle any claim for Taxes to the extent such claim relates solely to, with respect to the defense Seller, a Seller Group Member, and with respect to Buyer, either Buyer or an Affiliate of any Tax audit or administrative or court proceeding relating to Taxes for Buyer other than a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Company Group Member.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its affiliates or Pearle of notice of any pending or threatened audits or assessments with respect to Taxes which may materially affect the tax liabilities of Pearle for which such other party (or Seller would be required to indemnify Buyer pursuant to Section 5.2(c), provided that failure to comply with this provision shall not affect Buyer's right to indemnification hereunder. Seller shall have the sole right to represent Pearle's interests in any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if Seller shall keep Buyer informed on a settlement or compromise timely basis regarding the prosecution of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding. Notwithstanding the foregoing, Seller shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes of the Buyer or Pearle for any period after the Closing Date to any extent (including, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) without the prior written consent of Buyer. Such consent shall not be unreasonably withheld, and shall not be necessary to the extent that Seller has indemnified the Buyer (iiand Buyer agrees that it has been so indemnified) against the effects of any such settlement. Seller shall be entitled to participate at its expense in the defense of any claim for Taxes for a year or period ending after the Closing Date which may not be the subject of indemnification by Seller pursuant to Section 5.2(c) and, with the written consent of Buyer, and at Seller's sole expense, may assume the entire defense of such tax claim. Neither Buyer nor Pearle may agree to settle any tax claim for the portion of the year or compromise such audit or proceeding period ending on the Closing Date which may be the subject of indemnification by Seller under Section 5.2(c) without Buyer’s the prior written consentconsent of Seller, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller shall promptly notify If, subsequent to the other in writing upon receipt of Closing, Parent or the Surviving Corporation receives notice of any pending or threatened audits or assessments a Tax Contest with respect to Taxes any Tax Return for which a Pre-Closing Tax Period (a “Pre-Closing Return”), then within 15 days after receipt of such other party (or notice, Parent shall notify the Stockholder Representative of such notice. If the Indemnitors are expected to indemnify Indemnitees pursuant to this Agreement for any losses arising from such other party’s Affiliates) may be liable under this Agreement. SellerTax Contest, at its expense, the Stockholder Representative shall have the right to control the complete defense conduct and resolution of any such Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing DateContest, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates the issues raised in such Tax Contest could reasonably have an impact on Taxes of the Surviving Corporation for a taxable Tax period or portion thereof beginning on or after the Closing DateDate (a “Post-Closing Tax Period”), (i) Buyer then the Stockholder Representative shall afford Parent the opportunity to control jointly the conduct and resolution of the portion of such Tax Contest which could reasonably have an impact on Taxes of the Surviving Corporation in any Post-Closing Tax Period. If the Stockholder Representative shall have the right to control the conduct and resolution of such Tax Contest but elects in writing not to do so within ten days of receiving notice of such Tax Contest, then Parent shall have the right to control the conduct and resolution of such Tax Contest, provided that Parent shall keep the Stockholder Representative reasonably informed of all material developments on a timely basis and Parent shall not resolve such Tax Contest in a manner that could reasonably be entitled, at its expense, expected to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding have an adverse impact on the Indemnitors’ indemnification obligations under this Agreement without Buyer’s Stockholder Representative written consent, which consent shall not be unreasonably withheld withheld. Each party shall bear its own costs for participating in such Tax Contest unless otherwise specified in this Agreement. “Tax Contest” means any audit, other administrative proceeding or delayedinquiry or judicial proceeding involving Taxes. Buyer shall, at its expense, control In the complete defense event of any Tax audit conflict or administrative or court proceeding relating to Taxes for a taxable year or period beginning after overlap between the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence provisions of this Section 6.5(i); Article 7 and if the Closing Date is in the 2010 calendar yearArticle 10, such defense this Article 7 shall be governed by the third sentence of this Section 6.5(i)control.

Contest Provisions. Each of The Buyer and Seller shall promptly notify the other Sellers in writing upon receipt by the Buyer or the Company of notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments with respect to Taxes which may affect the tax liabilities of the Company for which such other party (or the Sellers would be required to indemnify the Buyer pursuant to Section 12.1(a), provided that failure to comply with this provision shall not affect the Buyer's right to indemnification hereunder. The Sellers shall have the sole right to represent the Company's interests in any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, and to employ counsel of their choice at their expense. Notwithstanding the foregoing, the Sellers shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which would adversely affect the liability for Taxes of the Buyer or the Company for any period after the Closing Date to any extent (including responding to information the imposition of income tax deficiencies, the reduction of asset basis or document requests and managing cost adjustments, the lengthening of any such audit amortization or proceedingdepreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) without the prior written consent of the Buyer. Such consent shall not be unreasonably withheld, and shall employ counsel or other advisors of its choice at its expense; provided, however, not be necessary to the extent that if a settlement or compromise the Sellers have indemnified the Buyer against the effects of any such audit or proceeding would settlement. The Sellers shall be reasonably likely entitled to increase participate at their expense in the Tax liability defense of Buyer or any of its Affiliates claim for Taxes for a taxable year or period or portion thereof beginning ending after the Closing DateDate which may be the subject of indemnification by the Sellers pursuant to Section 12.1(a) and, (i) Buyer shall be entitledwith the written consent of the Buyer, and at its their sole expense, may assume the entire defense of such tax claim. Neither the Buyer nor the Company may agree to participate in such audit settle any tax claim for the portion of the year or proceeding, and (iiperiod ending on the Closing Date which may be the subject of indemnification by the Sellers under Section 12.1(a) Seller may not settle or compromise such audit or proceeding without Buyer’s the prior written consentconsent of the Sellers, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Sellers in writing upon receipt by Buyer, any of its Tax Affiliates, or any of the Companies of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments with respect to Taxes which may materially affect the Tax Liabilities of the Company for which such other party (or any such other party’s Affiliates) may Sellers would be liable under this Agreementrequired to indemnify Buyer pursuant to Section 7.7.1. Seller, at its expense, Sellers shall control have the complete defense of sole right to represent the Companies' interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, . Provided however that if a any adjustment or settlement would materially affect the step up value of the assets deemed purchased under the Section 338(h)(10) election, or compromise of any if such audit adjustment or proceeding settlement otherwise would be reasonably likely to materially increase the Tax liability of Buyer or the Companies for any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in discussions with the Taxing Authority and Sellers shall not agree to such proceedings, and (ii) Buyer may not settle an adjustment or compromise such audit or proceeding settlement without Seller’s written consentthe consent of Buyer, which consent shall not be unreasonably withheld withheld. ARTICLE 7.7.4 Buyer and Sellers agree to cooperate and share all required information on a timely basis in order to timely file all Tax Returns and for the preparation of any audit, and for the prosecution or delayed. With respect to the defense of any Tax audit claim, suit or administrative or court proceeding relating to Taxes any proposed adjustment. Buyer and Sellers agree to retain or cause to be retained all books and records pertinent to the Companies until the applicable period for a taxable year assessment under applicable law (giving effect to any and all extensions or period beginning on waivers) has expired, and to abide by or before cause the abidance with all record retention agreements entered into with any Governmental Authority. After the Closing, Buyer will give Sellers reasonable notice prior to discarding or destroying any such books and ending after the Closing Daterecords relating to Tax matters and, if the Closing Date is Sellers so request, Buyer will allow Sellers (at Sellers' expense) to take possession of such books and records. Buyer and Sellers shall cooperate with each other in the 2009 calendar year, conduct of any audit or other proceedings involving the Companies for any Tax purpose and each shall execute and deliver such defense shall be governed by powers of attorney and other documents as are necessary and appropriate to carry out the second sentence intent of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).Section. ARTICLE 7.7.5

Contest Provisions. Each Buyer shall promptly notify Seller and provide a copy of Buyer and such notification to the Tax Director of Seller Parent in writing upon receipt by Buyer, any of its Affiliates or the Company of notice of any pending, proposed, threatened or actual Tax audit or Tax deficiency, assessment or other claim which may affect the Taxes for any Pre-Closing Period or any Straddle Period for which Seller would be liable pursuant to Section 9.1(a). Seller shall promptly notify the other Buyer in writing upon receipt by Seller or any of its Affiliates of notice of any pending pending, proposed, threatened or threatened audits actual Tax audit or assessments with respect to Tax deficiency, assessment or other claim which may affect the Taxes for any Straddle Period for which such other party (or any such other party’s Affiliates) may Buyer would be liable under this Agreementpursuant to Section 9.1(b). Seller, at its expense, Seller shall have the sole right to control the complete defense of in any Tax audit or administrative or court proceeding (a “Tax Contest”) relating to Taxes for a taxable year or period ending on or before any Pre-Closing Period of the Closing Date, including responding Company and to information or document requests and managing any such audit or proceeding, and shall employ counsel or and other advisors of its choice at its expense; provided, however, that if a settlement or compromise . In the event of any such audit or proceeding would be reasonably likely Tax Contest relating to increase a Straddle Period of the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing DateCompany, (i) to the extent the issues can be separated into those for which Seller would be liable under Section 9.1(a) and those for which Buyer would be liable under Section 9.1(b), then each of Seller and Buyer shall control the defense of those issues for which it would be entitledliable, employing counsel and other advisors of its own choice, at its expense, (ii) with respect to all other issues, Buyer shall be entitled to control the defense employing counsel and other advisors of its choice at its expense, provided that Seller (along with counsel and other advisors of its choice) shall be entitled to participate in the defense of and to take over such audit or proceedingdefense if Buyer is not prosecuting the defense diligently, vigorously and (iiprofessionally. Neither Buyer nor the Company may agree to settle any Tax claim which may affect the Taxes for which Seller would be liable under Section 9.1(a) Seller may not settle or compromise such audit or proceeding without Buyer’s the prior written consentconsent of Seller, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller shall promptly notify In the other in writing upon receipt of notice event that after the Closing any Governmental Entity informs either the Guarantors' Representative (or the Sellers) or the Purchaser (or the Company or its Subsidiaries) of any pending proposed or threatened audits actual audit, examination, adjustment, claim, assessment, or assessments demand concerning the amount of Taxes of the Company or any Subsidiary (an "Audit") with respect to Taxes for which such any periods closed before the Closing Date ("Pre-Closing Period"), the party so informed shall notify each other party of such matter within ten (10) Business Days after receiving such notice. No failure or delay in informing the other party shall reduce or otherwise affect the obligations or liabilities of any party hereto, except to the extent such failure or delay shall have materially and adversely affected the recipient party's ability to defend against any liability or claim with respect to such Taxes. Any notice shall be accompanied by a copy of any written notice or other party’s Affiliates) may be liable under this Agreementdocument received from the applicable Governmental Entity with respect to such matter. SellerSo long as the Guarantors' Representative diligently does so, the Guarantors' Representative shall have the right to control, at its expense, shall control the complete defense contest of the portions of such Audit for any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Pre-Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expensePeriod; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely the Guarantors' Representative elects to increase control the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after contest, the Closing Date, (i) Buyer Company and the Purchaser shall be entitledhave the right, at its their expense, to participate in such audit contest. For avoidance of doubt, the Purchaser and the Company (and not the Guarantors' Representative) shall have the sole right to control the contest of the portion of any Audit for the period open before and closed after the Closing Date and periods closed thereafter. No party hereto shall agree or proceeding, and (ii) Seller may not settle or compromise any issue related to Taxes of the Company or its Subsidiaries with respect to any Pre-Closing Period, which settlement or compromise would have any adverse impact on the liability for Taxes hereunder of any other party, without such audit or proceeding without Buyer’s written consent, other party's consent (which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).

Contest Provisions. Each Promptly after receipt by Buyer, Seller or one of Buyer and Seller their Affiliates of written notice of the assertion or commencement of any claim, audit, examination or other proposed change or adjustment by any taxing authority relating to a Pre-Closing Tax Period (a "Tax Claim"), the recipient shall promptly immediately notify the other party hereto. Such notice shall contain factual information (to the extent known) describing the asserted Tax Claim in writing upon receipt of notice reasonable detail and shall include copies of any pending notice or threatened audits or assessments with other document received from any taxing authority in respect to Taxes for which such other party (or of any such other party’s Affiliatesasserted Tax Claim. The failure of Seller to receive prompt notice from Buyer or its Affiliates as provided herein shall not relieve Seller of any of its obligations under Section 8.3(b) may be liable under this Agreementexcept to the extent such failure has a material adverse effect on the Seller's ability to defend the Tax Claim. Seller, at its expense, Seller shall control have the complete defense of right to represent each Subsidiary's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Pre-Closing Date, including responding to information or document requests and managing any such audit or proceedingTax Periods, and shall to employ counsel or other advisors of its Seller's choice at its expense; provided, however, that if a settlement or compromise of Buyer and its representatives shall be permitted, at their expense, to be present at any such audit or proceeding proceeding. Notwithstanding the foregoing, neither Seller nor any Affiliate of Seller shall be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which would be reasonably likely to increase materially adversely affect the Tax liability for Taxes of Buyer Buyer, or any of its Affiliates Subsidiary or for a taxable any period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding Date without the prior written consent of Buyer’s written consent, which . Such consent shall not be unreasonably withheld withheld, and shall not be necessary to the extent that (i) the settlement is consistent with the positions previously taken by the Subsidiary, or delayed. (ii) Seller has agreed to indemnify Buyer shall, at its expense, control or the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after Company against the Closing Date; provided, however, that if a settlement or compromise effects of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or the Company or any of its Subsidiaries of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments which may affect the tax liabilities of the Company or any of its Subsidiaries for which Seller would be required to indemnify Buyer pursuant to Section 5.1(a), but no failure to give such notice shall relieve Seller of any liability hereunder except to the extent, if any, that the rights of Seller with respect to Taxes for which such other party (claim are actually prejudiced. Seller shall have the right to represent the Company or any of its Subsidiaries’ (and upon assuming such right, no other party’s AffiliatesPerson will have the right to represent the Company and its Subsidiaries) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of interests in and manage any Income Tax audit or administrative or court proceeding relating to Taxes for a taxable year years or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided. Seller may not agree to settle any Income Tax claim which would materially adversely affect Buyer, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer Company or any of its Affiliates for a their Subsidiaries in any taxable period or portion thereof beginning ending after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding Date without Buyer’s prior written consent, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate at its expense in such proceedingsthe defense of any claim for Income Taxes for a year or period ending after the Closing Date which may be the subject of indemnification by Seller pursuant to Section 5.1(a) and, with the written consent of Buyer, and (ii) Buyer may not settle or compromise such audit or proceeding without at Seller’s expense, may assume the entire defense of such Income Tax claim. Neither Buyer nor the Company nor any of its Subsidiaries may agree to settle any Income Tax claim for the portion of the year or period ending on the Closing Date which may be the subject of indemnification by Seller under Section 5.1(a) without the prior written consentconsent of Seller, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of The Buyer and Seller shall promptly notify the other Sellers ------------------ in writing upon receipt by the Buyer, any of its Affiliates, the Company or the Subsidiaries of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments which may affect any Tax liability for which the Sellers are liable pursuant to this Section 8.2. The ----------- Sellers shall promptly notify the Buyer in writing upon receipt by the Sellers or any of their Affiliates of written notice from a taxing authority of a pending or threatened state, local or foreign Tax audit, examination or assessment with respect to Taxes for which such other party (the Company or its Subsidiaries and shall inform the Buyer as to the status of any such other party’s Affiliates) may be liable under this Agreementaudit, examination or assessment. Seller, at its expense, The Sellers shall control have the complete defense of sole right to represent the Company's or the Subsidiaries' interests in any Tax audit or administrative or court proceeding relating to taxable periods ending on or before the Closing Date or otherwise relating to Taxes for a which the Sellers may be liable pursuant to this Section 8.2, and to employ counsel of their choice at their expense. The ----------- Sellers shall have the sole right to settle, either administratively or after the commencement of litigation, any proceeding relating to Taxes of the Company or any Subsidiary for any taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if the Sellers shall not settle any proceeding with respect -------- ------- to such Taxes in a settlement or compromise manner that would effect the validity of any such audit or proceeding would be reasonably likely the Section 338(h)(10) Elections with respect to increase the Tax liability of Buyer Company or any Subsidiary without the prior consent of its Affiliates for a taxable period the Buyer which consent will not be unreasonably withheld and the Sellers shall use their best efforts to contest in good faith any proposed adjustment to the Allocation Schedule that would materially adversely affect the Company or portion thereof beginning after the Closing Date, any Subsidiary and shall not settle such proposed adjustment without either (i) the prior consent of the Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall will not be unreasonably withheld or delayed(ii) an agreement or other settlement in which the Taxing Authority agrees that such agreement or settlement is not prejudicial to the Company or any subsidiary for any period after the Closing Date; provided that the Sellers -------- shall have no liability under this Agreement arising from any audit, examination or proceeding which results from the Buyer's failure to make the Section 338(h)(10) Elections as contemplated by Section 8.2 (e) or failure to file all --------------- federal, state, local or foreign Tax Returns in accordance with the Allocation Schedule. Buyer shallIn the case of any Straddle Period, the Sellers shall be entitled to participate at its expense, control the complete defense of their expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending on and including the Closing Date; providedDate and, howeverwith the written consent of the Buyer, that if a settlement or compromise and at the Sellers' sole expense, may assume the entire control of any such audit or proceeding would be reasonably likely to increase proceeding. None of the Tax liability of Seller or Buyer, any of its Affiliates for a taxable period Affiliates, the Company or portion thereof ending on or before the Closing DateSubsidiaries may agree to settle any Tax claim which may be the subject of indemnification by the Sellers under this Section 8.2 without the prior written consent of the Sellers, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, ----------- which consent shall not may be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by sole discretion of the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Sellers.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or any Purchased Entity of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Seller may be liable under this Agreementpursuant to SECTION 8.2(A). Seller, at its expense, Seller shall control have the complete defense of sole right to represent the Purchased Entity's interests in any Tax audit or administrative or court proceeding ("TAX PROCEEDING") relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding Date or otherwise relating to information or document requests and managing any such audit or proceedingTaxes for which Seller may be liable pursuant to SECTION 8.2(A), and shall to employ counsel or other advisors of its choice at its expense; providedPROVIDED, howeverHOWEVER, that (A) Seller shall consult with Buyer before taking any significant action in connection with such Tax Proceeding if a settlement or compromise of any such audit or proceeding Tax Proceeding would be reasonably likely to increase the Tax liability of adversely affect Buyer or any of its Affiliates for a taxable period or portion thereof beginning (including, after the Closing, the Purchased Entities), and (B) Seller shall not settle, compromise or abandon any such Tax Proceeding, if such action would adversely affect Buyer or any of its Affiliates (including, after the Closing, the Purchased Entities), without obtaining the prior written consent of Buyer, which consent shall not be unreasonably withheld, delayed or conditioned. For the avoidance of doubt, Seller shall have the sole right (subject to the preceding sentence) to control any Tax Proceeding relating to the pre-Closing Daterestructuring of the Purchased Entities resident in Mexico. In the case of a Tax Proceeding for any Straddle Period of a Purchased Entity (other than a Straddle Period governed by the preceding sentence), the Controlling Party shall have the right to control such Tax Proceeding; PROVIDED, HOWEVER, that (iA) Buyer the Controlling Party shall provide the Non-controlling Party with a timely and reasonably detailed account of each phase of such Tax Proceeding; (B) the Controlling Party shall consult with the Non-controlling Party before taking any significant action in connection with such Tax Proceeding; (C) the Controlling Party shall consult with the Non-controlling Party and offer the Non-controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding (and will consider such comments in good faith); (D) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding; (E) the Non-controlling Party shall be entitled, at its expense, entitled to participate in such audit Tax Proceeding if such Tax Proceeding would have an adverse impact on the Non-controlling Party or proceeding, any of its Affiliates; and (iiF) Seller may the Controlling Party shall not settle settle, compromise or compromise abandon any such audit or proceeding Tax Proceeding without Buyer’s obtaining the prior written consent, which consent shall not be unreasonably withheld withheld, delayed or delayed. Buyer shallconditioned, at its expenseof the Non-controlling Party if such settlement, control compromise or abandonment would adversely affect the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller Non-controlling Party or any of its Affiliates Affiliates. "CONTROLLING PARTY" shall mean whichever Selling Entity, on the one hand, or Buyer, on the other hand, is reasonably expected to bear the greater Tax liability in connection with a Tax Proceeding for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedingsStraddle Period, and (ii) Buyer may "NON-CONTROLLING PARTY" shall mean whichever of Selling Entity, on the one hand, or Buyer, on the other hand, is not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With the Controlling Party with respect to the defense such Tax Proceeding. None of Buyer, any of its Affiliates or any Purchased Entity may settle any Tax audit or administrative or court proceeding relating claim for any Taxes 76 for which Seller may be liable pursuant to Taxes for a taxable year or period beginning on or before and ending after SECTION 8.2(A), without the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence prior written consent of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Seller.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or the Company or any of its Subsidiaries of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments which may affect the tax liabilities of the Company or any of its Subsidiaries for which Seller would be required to indemnify Buyer pursuant to Section 5.1(a), but no failure to give such notice shall relieve Seller of any liability hereunder except to the extent, if any, that the rights of Seller with respect to Taxes for which such other party (claim are actually prejudiced. Seller shall have the right to represent the Company or any of its Subsidiaries' (and upon assuming such right, no other party’s AffiliatesPerson will have the right to represent the Company and its Subsidiaries) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of interests in and manage any Income Tax audit or administrative or court proceeding relating to Taxes for a taxable year years or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided. Seller may not agree to settle any Income Tax claim which would materially adversely affect Buyer, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer Company or any of its Affiliates for a their Subsidiaries in any taxable period or portion thereof beginning ending after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding Date without Buyer’s 's prior written consent, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate at its expense in such proceedingsthe defense of any claim for Income Taxes for a year or period ending after the Closing Date which may be the subject of indemnification by Seller pursuant to Section 5.1(a) and, with the written consent of Buyer, and (iiat Seller's expense, may assume the entire defense of such Income Tax claim. Neither Buyer nor the Company nor any of its Subsidiaries may agree to settle any Income Tax claim for the portion of the year or period ending on the Closing Date which may be the subject of indemnification by Seller under Section 5.1(a) Buyer may not settle or compromise such audit or proceeding without the prior written consent of Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing ------------------ upon receipt after the Closing Date by any Buyer Group Member of notice of any pending domestic or foreign federal, state, local, county, municipal or other Tax audit, examination or pending or threatened audits or assessments with respect to Taxes assessment which may affect any Tax liability for which Seller is liable pursuant to Section 11.1(a), provided --------------- that failure to comply with this provision shall not affect Buyer's right to indemnification hereunder except to the extent such other party (or failure materially prejudices Seller's ability to contest any such other party’s Affiliates) may be liable under this AgreementTax liabilities. SellerSeller shall have the sole right, at its option and at its own expense, shall control to represent the complete defense interests of either Company or any Subsidiary in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the any Pre-Closing Date, including responding to information or document requests and managing any such audit or proceedingTax Period, and shall to employ counsel or other advisors of its choice at its expense; provided, however, --------- -------- that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to may participate in such audit or proceedingproceeding with counsel of its choice and at its expense. With reasonable prior notice to Buyer given not later than 12 months following the Closing Date, Seller shall have the sole right to prepare and file, or cause to be prepared and filed, at its option and at its own expense, voluntary disclosures to state, local, county or municipal tax authorities with respect to the Tax liability of either Company or any of the Subsidiaries for any Pre-Closing Tax Period. Subject to the following sentence, Seller shall have the sole right to settle, either administratively or after the commencement of litigation, any audit or proceeding relating to Taxes of either Company or any Subsidiary for any Pre-Closing Tax Period, subject, in the case of any refund, litigation, settlement, audit or proceeding that increases the Tax liability of a Buyer Group Member in a Post-Closing Tax Period by accelerating any Tax benefit to a Pre-Closing Tax Period or by deferring income to a Post-Closing Tax Period, to principles reciprocal to those provided in Section 11.1(d). Notwithstanding the preceding sentence, the settlement of --------------- any issue that increases the Tax liability of a Buyer Group Member in a Post- Closing Tax Period other than by accelerating any Tax benefit to a Pre-Closing Tax Period or by deferring income to a Post-Closing Tax Period (iii.e., an issue that increases Tax liability both in a Pre-Closing Tax Period and in a Post- Closing Tax Period) shall require the consent of the Buyer, which shall not be unreasonably withheld. To the extent that Seller may elects not settle or compromise to defend such audit or proceeding without Buyer’s written consentrelating to a Pre-Closing Tax Period, which consent shall not be unreasonably withheld or delayed. Buyer shallmay retain counsel, at its expensethe expense of Seller, and control the complete defense of such audit or proceeding. In the case of any Straddle Period, Seller shall be entitled to participate at its expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending on and including the Closing Date; providedDate and, howeverwith the written consent of Buyer, that if a settlement or compromise and at Seller's sole expense, may assume the entire control of any such audit or proceeding would proceeding. No Buyer Group Member may agree to settle any Tax claim which may be reasonably likely to increase the Tax liability subject of indemnification by Seller or any under Section 11.1 without the prior written consent of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall ------------ not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Repap in writing upon receipt by Buyer or any of its Affiliates (including Repap USA or any of its Affiliates) of notice of any pending or threatened federal, state, local or foreign income or franchise tax examinations, inquiries or audits or assessments with respect to Taxes which may materially affect the tax liabilities of Repap USA or its Subsidiaries for which such other party (or any such other party’s Affiliates) Repap may be liable under required to indemnify Buyer pursuant to Sections 5.2(b) or 5.9(c) (provided that failure to give this Agreementnotice shall not affect Buyer's right to indemnification hereunder unless such failure is prejudicial to Repap), or which may affect any tax liability or refund claim of Repap. SellerRepap shall be entitled to participate at its expense in the defense of any claims for Taxes or 10 11 any other proposed adjustments which may be the subject of indemnification by Repap pursuant to Section 5.2(b) or 5.9(c), and, with the written consent of Buyer, at its sole expense, shall control may assume the complete entire defense of such claims or proposed adjustments. Notwithstanding the foregoing, Repap shall not be entitled to settle, either administratively or after the commencement of litigation, any Tax audit claim for Taxes which would adversely affect the liability for Taxes of the Buyer, Repap USA or administrative or court proceeding relating to Taxes its Subsidiaries for a taxable year or any period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing DateDate to any extent (including, (ibut not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carry forwards) Buyer without the prior written consent of Buyer. Such consent shall not be entitledunreasonably withheld. Neither Buyer, at Repap USA nor its expense, Subsidiaries may agree to participate in such audit settle any claim for Taxes or proceeding, and (iiother proposed adjustments which may be the subject of indemnification by Repap under Sections 5.2(b) Seller may not settle or compromise such audit or proceeding 5.9(c) without Buyer’s the prior written consentconsent of Repap, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).V.5

Contest Provisions. Each CMS Energy or one of Buyer and Seller its subsidiaries shall promptly notify the other Stockholders in writing upon receipt by any Tax Indemnitee of notice of any pending or threatened audits federal, state, local or assessments with respect to Taxes foreign Tax audit or assessment (including any revenue agent report or notice of proposed adjustment) which may materially affect the Tax liabilities of Terra or its Subsidiaries for which the Stockholders would be required to indemnify the Tax Indemnitees pursuant to Section 10.1 or this Section 7.2, provided, that failure to comply with this provision shall not affect the Tax Indemnitees' right to indemnification hereunder except to the extent that such other party (or any omission results in a failure of actual knowledge of the Stockholders and the Stockholders are damaged as a result of such other party’s Affiliates) may be liable under this Agreementfailure of actual knowledge. Seller, at The Stockholders shall have the sole right to represent the interests of Terra and its expense, shall control the complete defense of Subsidiaries in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Balance Sheet Date, including responding and to information or document requests employ counsel of their choice at their expense, provided that the Tax Indemnitees (and managing their tax counsel) may, at their own expense, be present at and participate in any such audit or proceeding. Notwithstanding the foregoing, and the Stockholders shall employ counsel not be entitled to settle, either administratively or other advisors after the commencement of its choice at its expense; providedlitigation, howeverany claim for Taxes which would adversely affect the liability for Taxes of the Tax Indemnitees for any period after the Balance Sheet Date to any extent (including, that if a settlement but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or compromise cost adjustments, the lengthening of any such audit amortization or proceeding would be reasonably likely to increase depreciation periods, the denial of amortization, depreciation or depletion deductions, or the reduction of loss or credit carryforwards) without the prior written consent of the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which Indemnitees. Such consent shall not be unreasonably withheld or delayednecessary to the extent that the Stockholders have indemnified the Tax Indemnitees in a manner reasonably acceptable to the Tax Indemnitees against the effects of any such settlement. Buyer shallExcept to the extent that CMS Energy reasonably concludes that the presence of a representative of Management Stockholders will interfere with the contest of matters unrelated to the matters which are subject to indemnification by the Management Stockholders under this Section 7.2 ("Indemnified Tax Items"), a representative of the Management Stockholders (and their tax counsel) may, at its their own expense, control the complete defense of be present at and participate in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after Indemnified Tax Items. CMS Energy shall not settle any dispute with respect to Indemnified Tax Items without the Closing Date; providedconsent of the Management Stockholders, however, except that if a settlement or compromise of CMS may settle any such audit or proceeding would be reasonably likely dispute without the consent of the Management Stockholders if it agrees to increase relieve the Tax liability Management Stockholders of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With their indemnification obligation hereunder with respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)transaction.

Contest Provisions. Each of Buyer and Seller Party shall promptly notify the other in writing upon receipt by such party, or any of its affiliates of a notice of any pending or threatened audits Tax audits, claims or assessments (a "Tax Claim") which may affect the Tax liabilities of the Company or any Subsidiary for which the receiving party would be required to indemnify the notifying party pursuant to this Section 3.3(b)(i), provided that failure to comply with this provision shall not affect the notifying party's right to indemnification hereunder so long as the other party's position is not actually and materially prejudiced thereby. With respect to Taxes for any Tax Claim which such other party (might result in an indemnity payment to the Purchaser pursuant to Section 3.3(b)(i), the Seller shall have the sole right to represent the Company's or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of Subsidiary's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors and accountants of its choice at its expense; provided. Notwithstanding the foregoing, howeverthe Seller shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which would adversely affect the liability for Taxes of the Purchaser, the Company or any Subsidiary for any period after the Closing Date without the prior written consent of the Purchaser. Such consent shall not be unreasonably withheld, and shall not be necessary to the extent that if a settlement or compromise the Seller has fully indemnified the Purchaser against the effects of any such audit settlement. The Seller shall be entitled to participate at its expense in the defense of any Tax Claim for the portion of the year or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after ending on the Closing DateDate which may be the subject of indemnification by the Seller pursuant to Section 3.3(b)(i) and, (i) Buyer shall be entitledwith the written consent of the Purchaser, and at its sole expense, may assume the entire defense of such Tax claim. Neither the Purchaser nor the Company nor any Subsidiary may agree to participate in such audit settle any Tax claim for the portion of the year or proceeding, and (iiperiod ending on the Closing Date which may be the subject of indemnification by the Seller under Section 3.3(b)(i) Seller may not settle or compromise such audit or proceeding without Buyer’s the prior written consentconsent of Seller, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller Purchaser shall promptly notify the other ------------------ Seller in writing upon receipt by Purchaser, any of its Affiliates or the Company of notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments with respect to Taxes which may materially affect the tax liabilities of the Company for which such other party (or Seller would be required to indemnify Purchaser pursuant to Section 5.3(e)(ii)(A). Seller shall have the sole right to represent the Company's interests in any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided. Notwithstanding the foregoing, howeverSeller shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which would adversely affect the liability for Taxes of Purchaser, the Company or any of their Affiliates for any period after the Closing Date to any extent (including, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) without the prior written consent of Purchaser. Such consent shall not be unreasonably withheld, and shall not be necessary to the extent that if a settlement or compromise Seller has indemnified Purchaser against the effects of any such audit or proceeding would settlement. Seller shall be reasonably likely entitled to increase participate at its expense in the Tax liability defense of Buyer or any of its Affiliates claim for Taxes for a taxable year or period or portion thereof beginning ending after the Closing Date, (iDate which may be the subject of indemnification by Seller pursuant to Section 5.3(e)(ii)(A) Buyer shall be entitledand, at its expensesole expense and with the written consent of Purchaser, may assume the entire defense of such tax claim. Neither Purchaser nor the Company may agree to participate in such audit settle any tax claim for the portion of the year or proceeding, and (iiperiod ending on the Closing Date which may be the subject of indemnification by Seller under Section 5.3(e)(ii)(A) Seller may not settle or compromise such audit or proceeding without Buyer’s the prior written consentconsent of Seller, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of (i) Buyer and Seller shall promptly notify the other Vectron in writing upon receipt by Buyer or any of its Affiliates of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments with respect relating to Taxes any taxable period ending on or before the Closing Date or any Straddle Period or relating to a Tax for which such other party (or any such other party’s Affiliates) Vectron may be liable under Liable pursuant to this Agreement. Seller(ii) Vectron shall have the sole right to represent the Acquired Company’s interests in any Tax Proceeding relating to a taxable year ending on or before the Closing Date relating to a Tax for which Vectron would be liable pursuant to this Agreement, and to employ counsel of Vectron’s choice at Vectron’s expense; provided, however, that, except to the extent related to any combined, consolidated or unitary Tax Return, Buyer and its representatives shall be permitted, at its Buyer’s expense, to be present at, and participate in, any such Proceeding. Neither Buyer nor any Affiliate of Buyer shall control be entitled to settle, either administratively or after the complete defense commencement of a Proceeding, any Tax audit or administrative or court proceeding claim for Taxes which could adversely affect the Liability for Taxes relating to Taxes for a any taxable year or period ending on or before the Closing Date, including responding Date or relating to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding Tax for which Vectron would be reasonably likely liable pursuant to increase this Agreement without the Tax liability prior written consent of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing DateVectron, (i) Buyer shall be entitled, at its expense, not to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld withheld, conditioned or delayed. Buyer shall, Vectron may discharge at any time its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of indemnification obligation under this Section 6.5(i); and if 5.1 by paying Buyer the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of amount payable pursuant to this Section 6.5(i)5.1, calculated on the date of such payment.

Contest Provisions. Each If, subsequent to the Closing, any of Buyer and Seller shall promptly notify the other in writing upon receipt of or any Purchased Entity receives notice of any pending audit, other administrative proceeding or threatened audits inquiry or assessments judicial proceeding involving Taxes (a “Tax Contest”) with respect to Taxes any Tax Return of any Purchased Entity or with respect to the Purchased Assets for which a Pre-Closing Tax Period, then within 15 calendar days after receipt of such other party (or any notice, Buyer shall notify Parent of such other party’s Affiliates) may be liable notice; provided that the failure to so notify Parent shall not relieve Parent of its indemnification obligations under this AgreementAgreement except to the extent that Parent has been damaged by such failure. Seller, at its expense, Parent shall have the right to control the complete defense conduct and resolution of any such Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing DateContest, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise any of the issues raised in such Tax Contest could have any such audit or proceeding would be reasonably likely to increase the Tax liability adverse impact on Taxes of Buyer or any of its Affiliates Purchased Entity or with respect to the Purchased Assets for a taxable period or portion thereof beginning after the Post-Closing DateTax Period, then Parent (i) shall afford Buyer shall be entitledthe opportunity to control jointly the conduct and resolution of the portion of such Tax Contest that could have such an impact, at its expense, (ii) keep Buyer informed of all developments on a timely basis with respect to participate in such audit or proceedingTax Contest to the extent that Buyer is not jointly controlling the conduct and resolution of such Tax Contest, and (iiiii) Seller may shall not settle or compromise resolve such audit or proceeding Tax Contests without Buyer’s written consent, which consent shall not be unreasonably withheld withheld, conditioned or delayed. Buyer shall, at its expense, If Parent shall have the right to control the complete defense conduct and resolution of any such Tax audit or administrative or court proceeding relating Contest but elect in writing not to Taxes for do so, then Buyer shall have the right to control the conduct and resolution of such Tax Contest, provided that Buyer shall keep Parent informed of all developments on a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any timely basis and Buyer shall not resolve such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding Contest without SellerParent’s written consent, which consent shall not be unreasonably withheld withheld, conditioned, or delayed. With respect to Each party shall bear its own costs for participating in such Tax Contest. In the defense event of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before conflict between this Section 8.7 and ending after the Closing Dateprovisions of Section 7.5, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence provisions of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense 8.7 shall be governed by the third sentence of this Section 6.5(i)control.

Contest Provisions. Each CMS Energy or one of Buyer and Seller its subsidiaries shall promptly notify the other Stockholders in writing upon receipt by any Tax Indemnitee of notice of any pending or threatened audits federal, state, local or assessments with respect to Taxes foreign Tax audit or assessment which may materially affect the Tax liabilities of Waltxx xx its Subsidiaries for which the Stockholders would be required to indemnify the Tax Indemnitees pursuant to Section 10.1 or this Section 7.2, provided, that failure to comply with this provision shall not affect the Tax Indemnitees' right to indemnification hereunder except to the extent that such other party (or any omission results in a failure of actual knowledge of the Stockholders and the Stockholders are damaged as a result of such other party’s Affiliates) may be liable under this Agreementfailure of actual knowledge. Seller, at The Stockholders shall have the sole right to represent the interests of Waltxx xxx its expense, shall control the complete defense of Subsidiaries in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Unaudited Balance Sheet Date, including responding and to information or document requests employ counsel of their choice at their expense, provided that the Tax Indemnitees (and managing their tax counsel) may, at their own expense, be present at and participate in any such audit or proceeding. Notwithstanding the foregoing, and the Stockholders shall employ counsel not be entitled to settle, either administratively or other advisors after the commencement of its choice at its expense; providedlitigation, howeverany claim that would constitute a Timing Adjustment or any claim for Taxes which would adversely affect the liability for Taxes of the Tax Indemnitees for any period after the Unaudited Balance Sheet Date to any extent (including, that if a settlement but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or compromise cost adjustments, the lengthening of any such audit amortization or proceeding would be reasonably likely to increase depreciation periods, the denial of amortization, depreciation or depletion deductions, or the reduction of loss or credit carryforwards) without the prior written consent of the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which Indemnitees. Such consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control necessary to the complete defense of any extent that the Stockholders have indemnified the Tax audit or administrative or court proceeding relating Indemnitees in a manner acceptable to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise Tax Indemnitees against the effects of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. Each of In the event (i) the Seller or its Affiliates or (ii) the Buyer and Seller shall promptly notify the other in writing upon receipt of or its Affiliates receives notice of any pending or threatened audits Tax audit or assessments assessment or other dispute concerning Taxes with respect to Taxes for which such the other party may incur liability under this Article V, the party in receipt of such notice promptly shall notify the other party of such matter in writing, provided that failure of a party to comply with this provision shall not affect any party's right to indemnification hereunder unless (and then only to the extent) such failure materially adversely affects the ability of the party that did not receive notice to challenge such Tax audits or assessments. The Seller shall bear all costs of representing and, so long as it does so in good faith and with reasonable diligence, shall have the sole right to represent the interests of the Company in any Tax audit or administrative or court proceeding relating to any Tax for any taxable period ending on or before the Closing Date, and to employ counsel of its choice at the Seller's expense. The Seller shall fully and promptly inform the Buyer of all significant developments in any such other party’s Affiliatesmatter, and the Buyer shall have the right (including through counsel of its choosing) may to attend all hearings and similar proceedings. Notwithstanding the foregoing, the Seller shall not be liable under this Agreemententitled to settle, either administratively or after the commencement of litigation, any material claim regarding Taxes with respect to any Tax Return of the Company that is not prepared on a consolidated, combined or unitary basis that adversely would affect the liability for Taxes of the Buyer or the Company for any period after the Closing Date without the prior written consent of the Buyer, which consent shall not be unreasonably conditioned, withheld or delayed; provided, however, that such consent shall not be necessary to the extent that Seller has fully indemnified the Buyer against the effects of such settlement. Seller, at its expense, The Buyer shall control bear all costs or representing and shall have the complete defense sole right to represent the interests of the Company in any Tax audit or administrative or court proceeding relating to Taxes for a with respect to taxable year periods including (but not ending on) or period ending on or before beginning after the Closing Date, including responding Date and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement the Buyer shall not be entitled to settle, either administratively or compromise after the commencement of litigation, any such audit or proceeding claim regarding Taxes that adversely would be reasonably likely to increase affect the Tax liability of Buyer or the Seller for any Tax for any Pre-Closing Tax Period, without the prior consent of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consentSeller, which consent shall not be unreasonably conditioned, withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect required to the defense extent that the Buyer has fully indemnified Seller against the effects of such settlement. The Buyer shall fully and promptly inform the Seller of all significant developments in any Tax audit or administrative or court proceeding relating such matter, and the Seller shall have the right (including through counsel of its choosing) to Taxes for a taxable year or period beginning on or before attend all hearings and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)similar proceedings.

Contest Provisions. Each of Buyer and Seller Purchaser shall promptly notify the other Sellers in writing upon receipt by Purchaser, any of its Affiliates or the Companies or the Subsidiaries of notice of any pending or threatened Federal, state, local or foreign income or franchise tax audits or assessments with respect to Taxes or notification of any claim for taxation which may materially affect the tax liabilities of the Companies and/or the Subsidiaries for which such other party (the Sellers would be required to indemnify Purchaser, the Companies or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating Subsidiaries pursuant to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expenseSection 5.4(a)(i); provided, however, that a failure to give such notice will not affect Purchaser's, the Companies' or the Subsidiaries' rights to indemnification hereunder, except to the extent, if a settlement any, that, but for such failure, the Sellers could have avoided the Tax liability in question. The Sellers shall have the right to control the conduct of any audit or compromise claim or administrative or judicial proceeding relating to any Pre-Closing Period (other than an Interim Period, the treatment of which is discussed in the immediately succeeding paragraph), and to employ counsel of their choice at their expense. Notwithstanding the foregoing, the Sellers shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which would adversely affect the liability for Taxes of Purchaser, the Companies or the Subsidiaries for any period after the Closing Date (including, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) without the prior written consent of Purchaser. Such consent shall not be unreasonably withheld or delayed, and shall not be necessary to the extent that the Sellers have indemnified the Purchaser against the effects of any such settlement. Purchaser (and its representatives) also may participate in any such audit or claim or administrative or judicial proceeding at its own expense and, if the Sellers do not promptly assume the conduct or defense of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer claim or any of proceeding, Purchaser (or its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (irepresentatives) Buyer shall be entitledmay, at the Sellers' reasonable expense and without any effect to its expenseor the Companies' or Subsidiaries' rights to indemnification under Section 5.4(a)(i) of this Agreement, to participate defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding. The Sellers shall be entitled to participate at their expense in the defense of any claim for Taxes for an Interim Period which may be the subject of indemnification by the Sellers pursuant to Section 5.4(a)(i) and, with the written consent of Purchaser, which shall not be unreasonably withheld or delayed (it being understood that it would be reasonable for Purchaser to withhold such consent if as part of the same defense proceeding, there exist issues with respect to Taxes which may not be the subject of indemnification by the Sellers pursuant to Section 5.4(a)(i)), and (ii) Seller at its sole expense, may assume the entire defense of such Tax claim; provided, however, that, notwithstanding the foregoing, the Sellers shall not be entitled to settle or otherwise compromise, either administratively or after the commencement of litigation, any such Tax claim without the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed) if the settlement or compromise would result in any additional liability for Taxes of Purchaser, the Companies or the Subsidiaries for such audit Interim Period or proceeding any period after the Closing Date (including, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) which would not be fully indemnified by the Sellers under Section 5.4(a)(i) of this Agreement. Purchaser, the Companies and the Subsidiaries shall not agree to settle any tax claim for the portion of the year or period ending on the Closing Date which may be the subject of indemnification by the Sellers under Section 5.4(a)(i) without Buyer’s the prior written consentconsent of the Sellers, which consent shall not be unreasonably withheld or delayed. Buyer shallExcept as provided otherwise in Section 5.4(a)(vi) and this Section 5.4(a)(vii), Purchaser shall control at its expenseown expense any and all audit, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect judicial proceedings related to the defense Taxes of any Tax audit the Companies or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Subsidiaries.

Contest Provisions. Each of Buyer and Purchaser shall promptly, but in no event later than 10 days after receipt, notify Seller shall promptly notify the other in writing upon receipt by Purchaser, any of its Affiliates, any Company Member or any Subsidiary of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Seller may be liable under pursuant to this Agreement. Seller, at its expense, Seller shall control have the complete defense of sole right to represent each Company Member and each Subsidiary's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding Date or otherwise relating to information or document requests and managing any such audit or proceedingTaxes for which Seller may be liable pursuant to this Agreement, and shall to employ counsel or other advisors of its choice at its expense; provided. In the case of a period beginning before and ending after March 31, however1999, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer Seller shall be entitled, entitled to participate at its expense, to participate expense in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or attributable to the portion of such period beginning after ending on and including March 31, 1999 and, with the Closing Date; providedwritten consent of Purchaser and at Seller's sole expense, however, that if a settlement or compromise may assume the entire control of any such audit or proceeding would be reasonably likely to increase the Tax liability proceeding. None of Seller or Purchaser, any of its Affiliates Affiliates, any Company Member or any Subsidiary may settle any Tax claim for a taxable period or portion thereof ending on or before any Taxes for which Seller may be liable pursuant to this Agreement, without the Closing Date, (i) prior written consent of Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer which consent may not be unreasonably withheld. From the date hereof, Seller shall not make or terminate any Tax election, settle or compromise any Tax dispute, or enter into any closing agreement if such audit or proceeding action would materially increase the Taxes of any Company Member for any taxable period after March 31, 1999 without Seller’s the prior written consentconsent of Purchaser, which consent shall may not be unreasonably withheld or delayedwithheld. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before Annex B Unrelated Assets and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).Liabilities

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Sellers in writing upon receipt by Buyer, any of its Affiliates or, after the Closing Date, the Company or any Subsidiary of notice of any pending or threatened Tax audits or assessments with respect to Taxes which may materially affect the Tax liabilities of the Company or any Subsidiary for which Sellers would be required to indemnify Buyer pursuant to Section 9.1, provided that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder except to the extent such other party (or failure materially impairs Sellers' ability to contest any such other partyTax liabilities. Sellers shall have the sole right to represent the Company’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of and each Subsidiary’s interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its Sellers' choice at its Sellers' expense; provided, however, that if a settlement Sellers shall have no right to represent the Company’s or compromise any Subsidiary’s interests in any Tax audit or administrative or court proceeding unless Sellers shall have first notified Buyer in writing of Sellers' intention to do so and shall have agreed with Buyer in writing that, as between Buyer and Sellers, Sellers shall be liable for any Taxes that result from such audit or proceeding; provided, further that Buyer and its representatives shall be permitted, at Buyer’s expense, to be present at, and participate in, any such audit or proceeding would proceeding. Nothing herein shall be reasonably likely construed to increase the Tax liability of impose on Buyer or any of its Affiliates for a taxable period Affiliate thereof any obligation to defend the Company or portion thereof beginning after the Closing Date, (i) any Subsidiary in any Tax audit or administrative or court proceeding. Buyer shall be entitled, at its expense, have the sole right to participate in such audit defend the Company or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Subsidiary with respect to any issue arising with respect to any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof periods ending on or before the Closing DateDate to the extent Buyer shall have agreed in writing to forego any indemnification under this Agreement with respect to such issue. Notwithstanding the foregoing, (i) Seller, at its expense, Sellers shall not be entitled to participate in such proceedingssettle, and either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes of the Buyer, the Company, any Subsidiary or any Affiliate thereof for any period after the Closing Date to any extent (iiincluding, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) Buyer may not settle or compromise such audit or proceeding without Seller’s the prior written consentconsent of Buyer, which consent shall not may be unreasonably withheld or delayed. With respect in the sole discretion of Buyer unless Sellers have indemnified the Buyer in a manner acceptable to Buyer against the defense effects of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. Each of Buyer and Seller The Purchaser shall promptly notify the other Provant in writing upon receipt by the Purchaser or any of its affiliates of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments that may affect any Tax liability for which Provant is liable pursuant to Section 6.2. Provant shall have (i) the sole right to represent the interests of Provant with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of Business in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods commencing after December 14, 1999 and ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense, and (ii) the sole right to settle such audit or proceeding, either administratively or after the commencement of any litigation proceeding relating to Taxes in respect of the Business for any taxable period commencing after December 14, 1999 and ending on or before the Closing Date; provided, however, that in each case, if the outcome of such audit or proceeding is reasonably likely to materially adversely affect the Purchaser (after assuming the payment of any amount to be paid by Provant under Section 6.2) for a settlement taxable period commencing after the Closing Date, the Purchaser shall have the right to assume control of such audit or compromise of proceeding and Provant shall only have a right to participate at its expense in such audit or proceeding and shall have no right to settle such audit or proceeding, provided that the Purchaser shall not have the right to settle any such audit or proceeding would for which Provant may be reasonably likely to increase liable under Section 6.2 without the Tax liability prior written consent of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consentProvant, which consent may be withheld in the sole discretion of Provant. In the case of any Straddle Period, Provant shall not be unreasonably withheld or delayed. Buyer shall, entitled to participate at its expense, control the complete defense of expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending on and including the Closing Date; providedDate and, howeverwith the written consent of the Purchaser, that if a settlement or compromise and at Provant’s sole expense, may assume the entire control of any such audit or proceeding would be reasonably likely to increase proceeding. None of the Tax liability of Seller Purchaser or any of its Affiliates affiliates may agree to settle any Tax claim for a taxable period or portion thereof ending on or before which Provant may be liable under Section 6.2 without the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s prior written consentconsent of Provant, which consent shall not may be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence sole discretion of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Provant.

Contest Provisions. Each of Buyer Buyer, Seller and Seller Brite shall promptly notify the each other in writing upon receipt by any of them, or any of their affiliates, or Company, of notice of any pending or threatened federal, state, local, or foreign tax audits or assessments with respect to Taxes which may materially affect the tax liabilities of Savings for which such other party (Brite or any such other party’s Affiliates) may Seller would be liable under required to indemnify Buyer pursuant to this Agreement. Seller, at its expense, Brite shall control have the complete defense of sole right to represent Company's interests in any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitledchoice, at its expense. Notwithstanding the foregoing, Brite (i) shall consult with Buyer with respect to participate the resolution of any issue that would affect Buyer or Company in any way and to any extent, in the taxable periods subject to such audit proceeding or proceedingany other taxable periods (including, but not limited to, any resolution that would result in the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization of depreciation periods, the denial of amortization or depreciation deductions, or the reductions of loss or credit carry forwards to Company or Buyer), and (ii) Seller may shall not settle any such issue or compromise file any amended return relating to such audit or proceeding issue, without the consent of Buyer’s written consent, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Brite and Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate at Brite's expense in such proceedingsthe defense of any claim for Taxes for a period described in Section 4.5(e) for the portion of the year or period ending on November 30, and (ii) 1998 that is the subject of indemnification by Brite hereunder. Neither Company nor Buyer may not agree to settle any such claim for Taxes for the portion of the year or compromise such audit or proceeding period ending on November 30, 1998 that is the subject of indemnification by Brite hereunder without Seller’s the prior written consentconsent of Brite, which consent shall not be unreasonably withheld withheld. Brite shall not settle any such claim, or delayed. With take any other action with respect to such claim, without the defense consent of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing DateBuyer, if the Closing Date is in the 2009 calendar year, such defense which shall not be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)unreasonably withheld.

Contest Provisions. Each of Buyer and Seller The Company shall promptly notify the other Smitx & Xephew in writing upon receipt by it, any of its Affiliates or S&N DonJoy Mexico of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Smitx & Xephew may be liable under pursuant to paragraph (a) of this AgreementSection 8.1. Seller, at its expense, Smitx & Xephew shall control have the complete defense of sole right to represent the Company's and S&N DonJoy Mexico's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding Date or otherwise relating to information or document requests and managing any such audit or proceedingTaxes for which Smitx & Xephew may be liable pursuant to paragraph (a) of this Section 8.1, and shall to employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement Smitx & Xephew shall provide timely notice to the Company of any significant developments with respect to any such audit or compromise of proceeding; and provided, further that the Company and its representatives shall be permitted, at the Company's expense, to be present at, and participate in, any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or (not including any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consentrelating to income Taxes of Smitx & Xephew). In the case of a Straddle Period, which consent Smitx & Xephew shall not be unreasonably withheld or delayed. Buyer shall, entitled to participate at its expense, control the complete defense of expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes attributable to the portion of such Straddle Period ending on and including the Closing Date and, with the written consent of the Company, and at Smitx & Xephew's sole expense, may assume the entire control of such audit or proceeding. Notwithstanding the foregoing, Smitx & Xephew shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for a taxable year Taxes which could adversely affect the liability for Taxes of the Company, S&N DonJoy Mexico or Investor for any period beginning after the Closing Date; providedDate to any extent without the prior written consent of the Company, howeverwhich consent the Company may not unreasonably withhold. Notwithstanding the foregoing, that if a settlement or compromise none of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or Investor, any of its Affiliates Affiliates, the Company or S&N DonJoy Mexico may settle any Tax claim for a taxable period or portion thereof ending on or before any Taxes for which Smitx & Xephew may be liable pursuant to paragraph (a) of this Section 8.1, without the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s prior written consentconsent of Smitx & Xephew, which consent shall may not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Selling Parties in writing upon receipt by Buyer or, after the Closing Date, the Company of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments with respect to Taxes which may materially affect the Tax liabilities of the Company for which the Selling Parties would be required to indemnify Buyer Indemnified Parties pursuant to Section 7.1(a)(i); provided, that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder except to the extent such other party (or failure materially impairs the Selling Parties’ ability to contest any such other partyTax liabilities. The Selling Parties shall have the sole right to represent the Company’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of interests in any Tax audit or administrative or court proceeding relating which relates solely to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, howeverthat Buyer and its representatives shall be permitted, that if a settlement or compromise of at Buyer’s expense, to be present at, and participate in, any such audit or proceeding would and the Selling Parties give adequate assurances of their ability to satisfy any and all costs and liabilities associated therewith. Notwithstanding the foregoing, (A) neither the Selling Parties nor any Affiliate of the Selling Parties shall be reasonably likely entitled to increase settle, either administratively or after the Tax commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes of any Buyer Group Member, the Company, or any of its Affiliates Affiliate thereof for a taxable any period or portion thereof beginning after the Closing DateDate to any extent unless the Selling Parties have indemnified each Buyer Group Member against the effects of any such settlement without the prior written consent of Buyer, not to be unreasonably withheld, (iB) Buyer shall be entitled, at its expense, have the sole right to participate defend the Company with respect to any issue arising in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of connection with any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of extent Buyer shall have agreed in writing to forego any indemnification under this Agreement with respect to such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, issue and (iC) Seller, at its expense, nothing herein shall be entitled construed to participate impose on Buyer any obligation to defend the Company in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)proceeding.

Contest Provisions. Each of Buyer Buyer, Seller and Seller Brite shall promptly notify the each other in writing upon receipt by any of them, or any of their affiliates, or Company, of notice of any pending or threatened federal, state, local, or foreign tax audits or assessments with respect to Taxes which may materially affect the tax liabilities of Savings for which such other party (Brite or any such other party’s Affiliates) may Seller would be liable under required to indemnify Buyer pursuant to this Agreement. Seller, at its expense, Brite shall control have the complete defense of sole right to represent Company's interests in any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitledchoice, at its expense. Notwithstanding the foregoing, Brite (i) shall consult with Buyer with respect to participate the resolution of any issue that would affect Buyer or Company in any way and to any extent, in the taxable periods subject to such audit proceeding or proceedingany other taxable periods (including, but not limited to, any resolution that would result in the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization of depreciation periods, the denial of amortization or depreciation deductions, or the reductions of loss or credit carry forwards to Company or Buyer), and (ii) Seller may shall not settle any such issue or compromise file any amended return relating to such audit or proceeding issue, without the consent of Buyer’s written consent, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Brite and Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate at Brite's expense in such proceedingsthe defense of any claim for Taxes for a period described in SECTION 4.5(e)) for the portion of the year or period ending on November 30, and (ii) 1998 that is the subject of indemnification by Brite hereunder. Neither Company nor Buyer may not agree to settle any such claim for Taxes for the portion of the year or compromise such audit or proceeding period ending on November 30, 1998 that is the subject of indemnification by Brite hereunder without Seller’s the prior written consentconsent of Brite, which consent shall not be unreasonably withheld withheld. Brite shall not settle any such claim, or delayed. With take any other action with respect to such claim, without the defense consent of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing DateBuyer, if the Closing Date is in the 2009 calendar year, such defense which shall not be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)unreasonably withheld.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or any of the Acquired Companies of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which would affect the Tax Liabilities for which Seller is liable pursuant to Section 10.01(a) (a “Pre-Closing Tax Contest”); provided, however, that failure to provide such other party notice shall not void any indemnity hereunder except to the extent Seller is actually prejudiced by such failure. Seller shall have the right to elect, within thirty (or 30) days of receipt of written notice, to represent the Acquired Companies’ interests in any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding conducted on a combined, consolidated or unitary basis with Seller or solely relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding Date the resolution of which is not reasonably expected to information affect any Taxes or document requests Tax position in any Tax period beginning on or after the Closing Date and managing any such audit or proceedingfor which Seller is liable pursuant to Section 10.01(a), and shall to employ counsel or other advisors of its choice at its expense; providedprovided that Buyer shall have the right to participate in any such audit or proceeding with respect to Taxes imposed on the Acquired Companies, howeverthe Transferred Assets or the Business (except to the extent that such audit or proceeding is with respect to U.S. federal or state income Taxes imposed or calculated on a combined, that if a settlement consolidated or compromise unitary basis with Seller or any of its Affiliates) and Seller shall (a) keep Buyer informed of the progress of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for in a taxable period or portion thereof beginning after the Closing Datetimely manner, (ib) promptly provide Buyer shall be entitledwith copies of all material correspondence or other material documents relating to such audit or proceeding, at its expense, (c) promptly provide notice to participate Buyer of any material scheduled meetings (whether telephonic or in person) with any Taxing Authority relating to such audit or proceeding, and (iid) Seller may not settle or compromise any such audit or proceeding without the prior written consent of Buyer’s written consent, which consent shall not be unreasonably withheld withheld, conditioned or delayed. , to the extent such settlement could reasonably be expected to affect any Taxes or Tax position of the Buyer shall, at or its expense, control Affiliates (including the complete defense of Acquired Companies) in any Tax audit or administrative or court proceeding relating to Taxes for a taxable Taxable year or period beginning (or portion thereof) ending after the Closing Date; provided. If Seller does not or cannot elect to control a Pre-Closing Tax Contest, howeverBuyer shall control such proceeding and Seller shall have the rights of the non-controlling party, that if a settlement or compromise mutatis mutandis. In the case of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates an Acquired Company for a taxable period Straddle Period, Seller shall be entitled to elect to participate at its expense in such audit or proceeding with respect to the portion thereof of such Straddle Period ending on or before the Closing DateDate for which Seller is liable pursuant to Section 10.01(a). None of Buyer, (i) Seller, at any of its expense, shall be entitled to participate in such proceedings, and (ii) Buyer Affiliates or the Acquired Companies may not settle or compromise any such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With with respect to the defense portion of any Tax such audit or administrative or court proceeding relating to Taxes for a taxable year which Seller is liable pursuant to Section 10.01(a), without the prior written consent of Seller, not to be unreasonably withheld, conditioned or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)delayed.

Contest Provisions. Each of Buyer Centennial Bank and Seller the Acquiror shall promptly notify the other LFG in writing upon receipt by Centennial Bank, or any of its Affiliates, of notice of any pending or threatened federal, state, local or foreign income or franchise Tax audits or assessments with respect to Taxes which may materially affect the Tax liabilities of Centennial Bank for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding LFG would be reasonably likely required to increase indemnify Centennial Bank pursuant to paragraph (a), provided that failure to comply with this provision shall not affect Centennial Bank’s right to indemnification hereunder unless LFG is materially prejudiced thereby. LFG shall have the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, right to participate at LFG’s expense in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to taxable periods (or portions thereof) ending on or before the Closing Date and, with the written consent of Centennial Bank, and at LFG’s sole expense, may assume the entire of such defense. LFG shall be entitled to participate at LFG’s expense in the defense of any claim for Taxes for a taxable year or period beginning on or before and ending after the Closing DateDate which may be the subject of indemnification by LFG pursuant to paragraph (a) and, with the written consent of Centennial Bank and at LFG’s sole expense, may assume the entire defense of such Tax claim. Centennial Bank may not agree to settle any Tax claim which may be the subject of indemnification by LFG under paragraph (a) without the prior written consent of LFG, which consent shall not be unreasonably withheld. LFG shall allow Centennial Bank (or its successor, Acquiror) and its counsel to participate at Centennial Bank’s expense in any audit of LFG’s consolidated federal income Tax Returns to the extent that such audit of such income Tax Returns relate to Centennial Bank. LGF shall not settle any such audit in a manner without the prior written consent of Acquiror, which consent shall not be unreasonably withheld, if and to the extent such settlement would result in additional Tax liability of the Sole Stockholder or Centennial Bank which may be payable by Acquiror or if and to the extent such settlement would materially adversely affect the Tax attributes of Centennial Bank (or its successor, Acquiror) after the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Date.

Contest Provisions. Each of Buyer The Purchasers, on the one hand, and Seller the Sellers, on the other hand (the “Recipient”), shall promptly notify the Tax Representative of the other party in writing upon not later than the earlier of (i) 30 days after receipt by the Recipient or an Affiliate thereof of written notice (a “Proceeding Notice”) of any pending or threatened audits audits, adjustments, assessments or assessments with respect to other proceedings (a “Tax Audit”) that may affect the liability for Taxes for which of such other party or (or ii) 15 days prior to the deadline for responding to the Proceeding Notice. If the Recipient fails to give such notice to the Tax Representative of the other party, it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Audit to the extent such failure to give notice adversely affects the other party’s Affiliates) may be liable under right to participate in the Tax Audit or otherwise prejudices the other party. If, as a result of a “Determination” (as defined in Section 1313 of the Code), a party to this AgreementAgreement is entitled to indemnification for any Taxes arising in connection with a Tax Audit, the party responsible for such indemnification shall pay the amount of such Taxes due to the Tax Representative of the party entitled to indemnification no later than 15 days after the date the payment of such additional Taxes is made, provided the Tax Representative of the party responsible for such indemnification has received a written request for such payment setting forth in reasonable detail the amount of the requested payment. Seller, at its expense, shall control the complete defense of If such Tax Audit relates to any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing DateDate (and including the 2009 calendar year if the Closing occurs in 2009), including responding the Sellers shall, at their expense, control the defense and settlement of such Tax Audit. If such Tax Audit relates to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning ending after the Closing DateDate (but excluding the 2009 calendar year if the Closing occurs in 2009), (i) Buyer shall be entitledthe Purchasers shall, at its their expense, control the defense and settlement of such Tax Audit. The Tax Representative of the party in control of the defense or settlement of any Tax Audit that relates to participate Taxes for which the other party may be liable under this Agreement shall keep the Tax Representative of the other party informed of the progress of such Tax Audit. The parties shall cooperate with each other and with their respective Affiliates in the negotiation and settlement of any Tax Audit described in this Section 10.3. The Sellers shall provide or cause to be provided to the Purchaser Tax Representative necessary authorizations, including powers of attorney, to control the defense or settlement of any Tax Audit that the Purchasers are entitled to control pursuant to this Section 10.3 and shall execute or cause to be executed any documents necessary for the Sellers to defend or settle any such audit Tax Audit. Likewise the Purchasers shall provide or proceedingcause to be provided to the Seller Tax Representative necessary authorizations, including powers of attorney, to control the defense or settlement of any Tax Audit that the Sellers are entitled to control pursuant to this Section 10.3 and (ii) Seller may shall execute or cause to be executed any documents necessary for the Sellers to defend or settle any such Tax Audit. For any Tax Audit where both Sellers and Purchasers are liable for Taxes under this Agreement, such Tax Audit shall not settle or compromise such audit or proceeding be finally settled without Buyer’s the prior written consentconsent of the non-controlling party, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each If, subsequent to the Closing, Parent, the Surviving Corporation or any of Buyer and Seller its Subsidiaries receives notice of a Tax Contest which could give rise solely to Pre-Closing Taxes, then within ten (10) Business Days after receipt of such notice, Parent shall promptly notify the other in writing upon receipt Stockholder Representative of notice of any pending or threatened audits or assessments with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expensenotice; provided, however, that if a settlement any failure on the part of Parent to so notify the Stockholder Representative shall not limit any of the obligations of the Indemnifying Parties under Article VIII, unless the Indemnifying Parties demonstrate actual damage caused by such delay or compromise failure, and then only to the extent thereof. The Stockholder Representative shall have the right (but not the obligation) to control the conduct and resolution of such Tax Contest, provided that the Stockholder Representative shall keep Parent fully and timely informed with respect to the status of any such audit Tax Contest controlled by it and the Stockholder Representative shall in good faith allow Parent to make comments to the Stockholder Representative regarding the conduct of or proceeding would be reasonably likely positions taken in any such Tax Contest. With respect to increase any other Tax Contest, Parent shall have the right to control the conduct and resolution of such Tax liability of Buyer or Contest, provided however that, if any of its Affiliates for a taxable period or portion thereof beginning after such Tax Contest could give rise to Pre-Closing Taxes as well as non-Pre-Closing Taxes, then (a) the Closing Date, (i) Buyer Stockholder Representative shall be entitledhave the right, at its expensethe expense of the Company Holders, to participate in any such audit Tax Contest, (b) settlement or proceedingother resolution of any such Tax Contest shall be subject to the consent of Stockholder Representative (such consent not to be unreasonably withheld, condition or delayed), and (iic) Seller Parent shall keep Stockholder Representative fully and timely informed with respect to the status of such Tax Contest and Parent shall in good faith allow Stockholder Representative to make comments to Parent regarding the conduct of or positions taken in such Tax Contest. Each party shall bear its own costs for participating in such Tax Contest, except that the Indemnified Parties may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayedindemnification for their costs pursuant to this Agreement. With respect to To the defense extent of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before inconsistency between this Section 6.4 and ending after Section 8.3(f), the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence provisions of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense 6.4 shall be governed by the third sentence of this Section 6.5(i)control.

Contest Provisions. Each If, subsequent to the Closing, Purchaser or the Company receives notice of Buyer and Seller a Tax Contest with respect to any Tax Return for a Pre-Closing Tax Period, then within fifteen (15) days after receipt of such notice, Purchaser shall promptly notify Sellers of such notice. Purchaser shall have the other in writing upon receipt of notice of any pending or threatened audits or assessments with respect right to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense conduct and resolution of any such Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing DateContest, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if Purchaser shall keep Sellers reasonably informed of the progress of such Tax Contest and shall not effect any settlement or compromise of such Tax Contest without obtaining Sellers prior written consent thereto, which shall not be unreasonably withheld, conditioned or delayed; provided, further, that Sellers shall have the right to control, at the Sellers’ expense, the conduct and resolution of any such Tax Contest for a Pre-Closing Tax Period (other than a Straddle Period) that would be subject to indemnification under Section 10.02, and would not be expected to increase or otherwise adversely affect the Taxes of the Purchaser or the Company in a Post-Closing Tax Period, provided, that (i) Sellers shall keep Purchaser reasonably informed of the progress of such Tax Contest, (ii) Purchaser shall have the right to participate, at the Purchaser’s expense, in the conduct and resolution of any such Tax Contest, and (iii) Sellers shall not effect any settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding Contest without Buyerobtaining Purchaser’s prior written consentconsent thereto, which consent shall not be unreasonably withheld withheld, conditioned or delayed. Buyer shall, at its expenseif such settlement or compromise would increase the liability for Taxes of Purchaser or the Company in a Post-Closing Tax Period; provided, however that, notwithstanding the foregoing, Purchaser shall have the right to control or assume control of any such Tax Contest if the complete defense Sellers fail to assume control of the conduct and resolution of any Tax audit Contest within fifteen (15) days of the receipt of the notice from the Purchaser or administrative or court proceeding relating Sellers fail to Taxes for a taxable year or period beginning after the Closing Date; diligently contest such Tax Contest, provided, however, that if a Purchaser shall keep Sellers reasonably informed of the progress of such Tax Contest and shall not effect any settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding Contest without Seller’s obtaining Sellers prior written consentconsent thereto, which consent shall not be unreasonably withheld withheld, conditioned or delayed. With respect to In the defense event of any Tax audit conflict or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before overlap between the provisions if this Section 9.03 and ending after Section 10.05, the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence provisions of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense 9.03 shall be governed by the third sentence of this Section 6.5(i)control.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer or any of its Affiliates (including the Transferred Subsidiaries) of notice of any pending or threatened Tax audits or assessments with respect to Taxes that may affect the Tax Liabilities for which Seller would be required to indemnify Buyer pursuant to Section 4.5(a) or (b), provided that any failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder to the extent such other party (failure does not prejudice Seller’s ability to defend such audit or any assessment or increases the amount of such other partyTaxes. Seller shall have the sole right to represent the relevant Transferred Subsidiary’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of interests in any Tax audit or administrative or court proceeding (“Tax Proceeding”) relating to Taxes for a taxable year or period ending on or before the Pre-Closing Date, including responding to information or document requests and managing any such audit or proceedingPeriods, and shall to employ counsel or other advisors of its choice at its expense; provided, however, except that if a settlement or compromise of any Buyer shall have the right to participate at its own expense in such audit or proceeding proceedings to the extent that such proceedings would be reasonably likely affect the amount of Tax for which it is required to increase indemnify Seller under this Section 4.5. Buyer shall have the sole right to represent the relevant Transferred Subsidiary’s interest in any Tax liability of Buyer Proceeding relating to any Straddle Period or any Post-Closing Period, except that Seller shall have the right to participate at its own expense in such proceedings to the extent that such proceedings would reasonably likely affect the amount of its Affiliates Tax for a taxable period or portion thereof beginning which it is required to indemnify Buyer under this Section 4.5. Notwithstanding the foregoing, after the Closing Date, (i) Seller shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes relating to a Pre-Closing Period that may either (x) materially affect the Buyer’s liability to indemnify Seller under this Section 4.5 or (y) increase the liability for Taxes of Buyer or any Transferred Subsidiary in any Post-Closing Tax Period, without the prior written consent of Buyer, which consent shall not be entitled, at its expense, to participate in such audit or proceeding, and unreasonably withheld; (ii) Buyer shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes relating to a Straddle Period or Post-Closing Period that may either (x) materially affect the Seller’s liability to indemnify Buyer under this Section 4.5 or (y) increase the liability for Taxes of Seller may or any of its Affiliates (other than the Transferred Subsidiaries) in any Tax Period, without the prior written consent of Seller, which consent shall not settle be unreasonably withheld; and (iii) in either case (i) or compromise (ii), such audit consent shall not be necessary to the extent that the party entering such settlement has agreed in writing to indemnify the other party against the effects of any such settlement. Notwithstanding the foregoing provisions of this Section 4.5(i), (A) any Tax Proceedings relating to Transfer Taxes that are the subject matter of Section 4.5(a) shall be conducted by the party having the responsibility to file the Tax Return for such Transfer Taxes under Section 4.5(a), with the other party having the right to participate at its own expense in such proceedings, and with neither party entitled to settle, either administratively or proceeding after the commencement of litigation, any claim for such Transfer Taxes without Buyerthe other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any and (B) Tax audit or administrative or court proceeding relating Proceedings related to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability Return with respect to Cytec Surface Specialties (Shanghai) Co. Ltd. described in the penultimate sentence of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (iSection 4.5(h) Seller, at its expense, shall be entitled subject to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and 4.5(i) as if the it is related to a Pre-Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Period.

Contest Provisions. Each of Buyer and Purchaser shall promptly, but in no event later than 10 days after receipt, notify Seller shall promptly notify the other in writing upon receipt by Purchaser, any of its Affiliates, any Company Member or any Subsidiary of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Seller may be liable under pursuant to this Agreement. Seller, at its expense, Seller shall control have the complete defense of sole right to represent each Company Member and each Subsidiary's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding Date or otherwise relating to information or document requests and managing any such audit or proceedingTaxes for which Seller may be liable pursuant to this Agreement, and shall to employ counsel or other advisors of its choice at its expense; provided, however, that if . In the case of a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning before and ending after the Closing Date, (i) Buyer Seller shall be entitled, entitled to participate at its expense, to participate expense in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes attributable to the portion of such period ending on and including the Closing Date and, with the written consent of Purchaser and at Seller's sole expense, may assume the entire control of such audit or proceeding. None of Purchaser, any of its Affiliates, any Company Member or any Subsidiary may settle any Tax claim for a any Taxes for which Seller may be liable pursuant to this Agreement, without the prior written consent of Seller, which consent may not be unreasonably withheld. From the date hereof, Seller shall not make or terminate any Tax election, settle or compromise any Tax dispute, or enter into any closing agreement if such action would materially increase the Taxes of any Company Member for any taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise Date without the prior written consent of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consentPurchaser, which consent shall may not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.