Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date. (b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment. (c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a). (d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Sources: Merger Agreement (Bancorp, Inc.)
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the ClosingEffective Time, Bancorp the Purchaser -------- shall promptly notify Shareholders the Partners in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp the Purchaser or ▇▇▇▇▇ KBC which, if determined adversely to the taxpayer or after the lapse of time time, would be grounds for indemnification under Section 8.01(a)8.02. Such notice shall contain factual information (to the extent known to Bancorp the Purchaser or ▇▇▇▇▇KBC) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority taxing authority in respect of any such asserted Tax liability. If Bancorp the Purchaser fails to give Shareholders the Partners prompt notice of an asserted Tax liability as required by this Section 8.05(b)8.05, then (i) if Shareholders the Partners are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders the Partners shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders the Partners are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholdersthe Partners, then any amount which Shareholders the Partners are otherwise required to pay Bancorp the Purchaser pursuant to Section 8.01(a) 8.02 with respect to such liability shall be reduced by the amount of such detriment.
(b) The Partners shall control in their sole and absolute discretion, and the Purchaser and KBC shall cooperate with the Partners with respect to, any audit, controversy or administrative or judicial proceeding relating to Income Tax Returns of KBC or the Partners for any taxable period ending at or before the Effective Time.
(c) Shareholders The Partners may elect to direct, through counsel of their own choosing and at their own expense, control any audit, claim for refund and administrative or judicial proceeding involving any asserted Non-Income Tax liability with respect to which indemnity may be sought under Section 8.01(a) 8.02 (any such audit, claim for refund or proceeding relating to an asserted Tax liability are is referred to herein collectively as a "Contest"). If Shareholders the Partners elect to direct the Contest of an asserted Tax liabilitya ------- Contest, they shall, within thirty (30) 30 calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof)liability, notify Bancorp the Purchaser of their intent to do so so, and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp the Purchaser shall cooperate and shall cause ▇▇▇▇▇ KBC or its successor to cooperate cooperate, at the expense of the Partners, in each phase of such Contest. If Shareholders the Partners elect not to control the Contest, fail to notify the Purchaser of their election as herein provided or contest their obligation to indemnify under Section 8.02, the Purchaser or KBC may pay, compromise or contest, at its own expense, such asserted liability. However, in such case, neither the Purchaser nor KBC may settle or compromise any asserted liability over the objection of the Partners; provided, however, that consent to settlement or compromise shall not be -------- ------- unreasonably withheld. In any event, the Partners may participate, at their own expense, in the Contest. If the Partners choose to direct the Contest, Bancorp the Purchaser shall promptly empower and shall cause ▇▇▇▇▇ KBC or its successor promptly to empower (by power-of-power of attorney and such other documentation as may be appropriate) such representatives of Shareholders the Partners as they it may designate to represent Bancorp the Purchaser or ▇▇▇▇▇ KBC or its successor in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders the Partners would be liable under Section 8.01(a)8.02.
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. The Sellers and their duly appointed representatives shall have the exclusive authority to control any audit or examination by any taxing authority, to initiate any claim for refund, to amend any Tax return and to contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any liability of the Target or its Subsidiaries for Taxes reflected on any Tax returns covering any Pre-Closing Periods; PROVIDED, HOWEVER, that (a) Shareholders will allow ▇▇▇▇▇ and neither the Sellers nor any of their duly appointed representatives shall, without the prior written consent of the Buyer, which consent shall not be unreasonably withheld, file any claim for refund, amend any Tax return or enter into any settlement of any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Buyer or any of its counsel to participate at its own expense in Affiliates for any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ period beginning after the Closing Date unless such settlement would be reasonable in the case (a "POST-CLOSING PERIOD") or any portion of a Person that owned ▇▇▇▇▇ both before and an Overlap Period beginning after the Closing Date.
, and (b) After neither the ClosingSellers nor any of their duly appointed representatives shall, Bancorp shall promptly notify Shareholders in writing without the prior consent of the commencement Buyer, which consent shall not unreasonably be withheld, enter into any settlement of any Tax contest or otherwise compromise any issue that would increase any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Buyer of any amount under Section 9.3 unless the Sellers shall have agreed to indemnify the Buyer for payment of such Taxes. Buyer and its duly appointed representatives shall have the exclusive authority to control any audit or administrative other proceeding relating to Taxes for any taxable year or judicial proceeding or other taxable period ending after the Closing Date; PROVIDED, HOWEVER, that (a) neither Buyer, the Target nor any of their duly appointed representatives shall, without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, enter into any settlement of any demand contest or claim otherwise compromise any issue that affects or may affect the Tax liability of the Sellers or any of their affiliates for any Pre-Closing Period or any portion of the Overlap Period ending on Bancorp the Closing Date, and (b) neither Buyer, the Target nor any of their duly appointed representatives shall, without the prior consent of the Sellers, which consent shall not unreasonably be withheld, enter into any settlement of any contest or ▇▇▇▇▇ which, if determined adversely otherwise compromise any issue that would reduce any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Sellers of any amount under Section 9.3 unless Buyer shall have waived or caused to be waived for itself and the Target any right to indemnification for Taxes from the Sellers. The Sellers shall be entitled to any Tax refund relating to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (Target and its Subsidiaries to the extent known such Tax refund relates to Bancorp any Pre-Closing Period or ▇▇▇▇▇) describing any portion of the asserted Tax liability Overlap Period ending on the Closing Date, unless such refund has been recorded as an Asset on the Closing Balance Sheet in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability case Buyer shall be reduced by the amount of such detrimententitled thereto.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in Whenever any audits taxing authority makes a written assertion of a consolidatedclaim for or dispute regarding, combined or unitary Tax Return assessment of, Taxes for which the Indemnifying Securityholders are liable or required to provide indemnification under this Article VI, the Buyer shall, if informed of such an Affiliated Group assertion or assessment, inform the Indemnifying Securityholders within fifteen (15) business days; provided, that any failure to inform the Indemnifying Securityholders shall not relieve the Indemnifying Securityholders of which ▇▇▇▇▇ was a member their obligation to provide the indemnity required hereunder. The Indemnifying Securityholders shall have the right to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or dispute to the extent such proceedings or determinations affect the amount of Taxes for which the Indemnifying Securityholders are liable or required to provide indemnification under this Article VI, except that the Buyer shall have the right to consent to any settlement to the extent such Returns relate proceedings or settlement could reasonably be expected to ▇▇▇▇▇affect the amount of Taxes imposed on the Buyer, the Surviving Corporation or any Subsidiary for taxable periods or portions thereof beginning after the Pre-Closing Tax Periods. Shareholders will Whenever any taxing authority makes a written assertion of a claim for or dispute regarding, or assessment of, Taxes for which the Buyer is liable or required to provide indemnification under this Article VI, the Indemnifying Securityholders shall, if informed of such assertion or assessment, inform the Buyer within fifteen (15) business days; provided, that any failure to inform the Indemnifying Securityholders shall not relieve the Indemnifying Securityholders of their obligation to provide the indemnity required hereunder. The Buyer shall have the right to control any resulting proceedings and to determine whether and when to settle any such audit in a manner claim, assessment or dispute, except that the Indemnifying Securityholders shall have the right to consent, which would adversely affect ▇▇▇▇▇ after the Closing Date unless such consent shall not be unreasonably withheld, to any settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known such proceedings could reasonably be expected to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by materially affect the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability Taxes for which Shareholders would be the Indemnifying Securityholders are liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail required to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionindemnification this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Brookdale Senior Living Inc.)
Contests. Whenever any Tax authority asserts a claim, makes a written assessment or otherwise disputes the amount of Taxes for which the Stockholder is or may be liable under this Agreement or by reason of the Stockholder's ownership of Company Common Stock on or before the Closing Date, Parent shall, if informed of such an assertion, inform the Stockholder within fifteen (a15) Shareholders business days, and the Stockholder shall have the right to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or dispute to the extent such proceedings or determinations affect the amount of Taxes for which the Stockholder may be liable; provided, however, that Parent shall have the right to consent, which consent will allow ▇▇▇▇▇ not be unreasonably withheld or delayed, to any settlement to the extent such proceedings or settlement could reasonably be expected to materially affect the amount of Taxes imposed on Parent or the Company for Tax periods beginning after the Closing Date. Whenever any Tax authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which Parent is or may be liable under this Agreement, the Stockholder shall, if informed of such assertion in writing, inform Parent within fifteen (15) days, and its counsel Parent shall have the right to participate at its own expense in control any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member resulting proceedings to the extent that such Returns they relate to ▇▇▇▇▇. Shareholders will not such claim, assessment or dispute, and to determine whether and when to settle any such audit in a manner claim, assessment or dispute; provided, however, that the Stockholder shall have the right to consent, which would adversely affect ▇▇▇▇▇ after the Closing Date unless such consent shall not be unreasonably withheld or delayed, to any settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known such proceedings could reasonably be expected to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by materially affect the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim Taxes for refund and administrative which the Stockholder is or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest")liable. If Shareholders elect to direct the Contest Treatment of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt Payments. All of the notice of asserted Purchase Consideration as adjusted by the Contingent Purchase Consideration will be treated as purchase price paid by Parent for the Company Common Stock for all income Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)accounting purposes.
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Sources: Stock Purchase Agreement (Management Network Group Inc)
Contests. If a notice of deficiency, proposed adjustment, assessment, audit, examination, or other administrative or court proceeding, suit, dispute, or other claim (aa "TAX CONTEST") Shareholders will shall be delivered, sent, commenced, or initiated to or against Parent or the Company or any Subsidiary by any Taxing authority with respect to Taxes that results in or may result in a Tax Loss (as hereinafter defined in Section 11.2) for which indemnification may be claimed from the Stockholders under this Agreement, Parent shall promptly notify Stockholders' Representative in writing of such Tax Contest; provided that the failure to so notify shall not relieve the Stockholders of their indemnification obligations hereunder, except to the extent such failure has actually and materially prejudiced the Stockholders. The Stockholders shall have the right (subject to Parent's consent, which shall not be unreasonably withheld) to represent the Company or any Subsidiary's interest and to employ counsel of their choice at their expense with respect to any such Tax Contest relating to a period ending on or before the Closing Date; and Parent shall cause each of the applicable Company or any Subsidiary to execute any powers of attorney or other documents or forms necessary in order to allow ▇▇▇▇▇ the Stockholders to control such contest and to settle any such Tax Contest (subject to Parent's consent, which shall not be unreasonably withheld). Parent shall have the sole right to represent the Company or any Subsidiary's interests and to employ counsel of its counsel to participate choice at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member with respect to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in Tax Contest relating to a manner which would adversely affect ▇▇▇▇▇ period ending after the Closing Date unless (including any Straddle Period); provided that the Stockholders shall be liable to Parent for a pro rata share of any expenses (including attorneys' expenses) incurred by Parent in conducting such Tax Contest relating to a Straddle Period and such expense shall be considered a Tax Loss for which Parent is entitled to indemnification pursuant to Section 11.2. Notwithstanding any other provision of this Section 7.5, Stockholders' Representative may not, without Parent's consent, settle or otherwise dispose of any Tax Contest if such settlement would be reasonable in or disposition could adversely affect the case Tax liability of a Person that owned ▇▇▇▇▇ both before and Parent or the Company or any Subsidiary for any Tax period or portion thereof beginning on or after the Closing Date.
(b) After . In the Closing, Bancorp shall promptly notify Shareholders in writing event the Stockholders do not take control of a Tax Contest that they have the right to control hereunder within 30 days of receiving notification of the commencement existence of such Tax Contest, Parent may take control, and the Stockholders shall be liable to Parent for any expenses (including attorneys' expenses) incurred by Parent in conducting such Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichContest, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted expense shall be considered a Tax liability. If Bancorp fails Loss for which Parent is entitled to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp indemnification pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest")11.2. If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.33 38
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel Newco Sub agrees to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member give written notice to the extent Remington Holders of the receipt of any written notice by any Company Party, and the Remington Holders agree to give to Newco Sub written notice of the receipt of any written notice by them, that such Returns relate to ▇▇▇▇▇. Shareholders will not settle involves the assertion of any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closingclaim, Bancorp shall promptly notify Shareholders in writing of or the commencement of any Action, with respect to the Target Companies which could result in a breach of a representation or warranty in Section 3.21 or relates to any Pre-Closing Tax audit or administrative or judicial Period of any Target Company (including, for the avoidance of doubt, any partnership-level proceeding or claim related to an IRS Form 1065 of the Target for an applicable period but excluding any partner-level proceeding or claim of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(aRemington Holder) (a “Tax Claim”). Such notice shall contain factual information The Remington Holders will have the right (but not the obligation) to control the extent known to Bancorp contest or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies resolution of any Tax Claim; provided, that (a) the Remington Holders will have provided written notice or other document received from any to Newco Sub of its intention to control such Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liabilityClaim, and (iib) if Shareholders are the Remington Holders will obtain the prior written consent of the Target (which consent will not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then be unreasonably withheld or delayed) before entering into any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount settlement or concession of such detriment.
(c) Shareholders may elect Tax Claim if such settlement or concession could reasonably be expected to directadversely impact the liability of Newco Sub, through counsel of the Target or their own choosing and at their own expenseAffiliates for Taxes for any Post-Closing Tax Period; provided, any auditfurther, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may that Newco Sub will be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right entitled to participate in the defense of such Tax Contest and (y) Bancorp to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel will be borne by Newco Sub. To the extent the Remington Holders do not control a Tax Claim, the Company Parties may defend against such Tax Claim; provided that the Remington Holders will be entitled to participate in the defense of such Tax Claim and to employ counsels of their choice for such purpose, the fees and expenses of which separate counsel will be borne by the respective Remington Holders; provided further that such Tax Claim may not be settled or ▇▇▇▇▇ may payconceded without the prior written consent of the Remington Holders, compromise which consent will not be unreasonably withheld or contest such asserted liability in their sole discretiondelayed. In the event of a conflict between this Section 7.05 and any other section of this Agreement, this Section 7.05 will govern with respect to the control of Tax Claims.
Appears in 1 contract
Sources: Acquisition Agreement (Ashford Inc)
Contests. If a notice of deficiency, proposed adjustment, assessment, audit, examination or other administrative or court proceeding, suit, dispute or other claim (aa “Tax Contest”) shall be delivered, sent, commenced, or initiated to, by or against a Parent Group Member, the Company or any Subsidiary by any taxing authority with respect to Taxes that results in or may result in Tax Losses or Expenses for which indemnification may be claimed against Shareholders will and the DolEx Class B Shareholders under this Agreement, Parent shall promptly notify the Shareholder Representative in writing of such Tax Contest; provided that the failure to so notify the Shareholder Representative shall not relieve Shareholders or the DolEx Class B Shareholders of their indemnification obligations hereunder, except to the extent that such failure prejudices the Shareholders or the DolEx Class B Shareholders defense of the Tax Contest. The Shareholders and the DolEx Class B Shareholders shall have the right to represent the Company and each Subsidiary’s interests and to employ counsel of their choice at their expense with respect to any such Tax Contest for which they are entirely liable; provided that the Shareholder Representative shall immediately notify Parent of the decision to take control of such Tax Contest; and Parent shall cause the Company and each Subsidiary to execute any powers of attorney or other documents or forms necessary in order to allow ▇▇▇▇▇ the Shareholders and its counsel the DolEx Class B Shareholders to control such Tax Contest and to settle any such Tax Contest. In the case of any such Tax Contest, Parent shall also be entitled to participate at its own expense in such Tax Contest. In the case of any audits of Tax Contest relating to any Tax for any Straddle Period, or with respect to any Tax Contest in which the Shareholders or the DolEx Class B Shareholders do not have the right to represent the Company or a consolidatedSubsidiary’s interest pursuant to this Section 10.2(d), combined or unitary Parent, the Shareholders, and the DolEx Class B Shareholders shall each be entitled to participate at their own expense in such Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member Contest to the extent that it relates to a Tax for which such Returns relate party bears Losses or Expenses pursuant to ▇▇▇▇▇Section 10.1. Shareholders will not No party may settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement or otherwise dispose of any Tax audit Contest in any manner without the consent and approval of the other party, which consent and approval will not be unreasonably withheld, conditioned or administrative delayed. In the event that Shareholders or judicial proceeding the DolEx Class B Shareholders do not take control of a Tax Contest that they have the right to control hereunder, Parent shall keep the Shareholder Representative reasonably informed as to the progress of such Tax Contest and shall not enter into any settlement or other disposition of such Tax Contest prior to receiving the written consent of the Shareholder Representative, which consent will not be unreasonably withheld, conditioned or delayed. In no event, without the prior written consent of the Shareholder Representative, which shall not be unreasonably withheld, conditioned or delayed, shall Parent, the Company or each Subsidiary grant an extension of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse applicable statute of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority limitations in respect of any such asserted Tax liability. If Bancorp fails period ending on or prior to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have Closing Date or any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detrimentStraddle Period.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp the Purchaser shall promptly notify Shareholders the Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding or and shall also separately notify the Seller in writing of any demand or claim on Bancorp the Purchaser or ▇▇▇▇▇ the Company which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification by the Seller under Section 8.01(a)this Article VII. Such notice shall contain factual information (to the extent known to Bancorp the Purchaser or ▇▇▇▇▇the Company) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority taxing authority in respect of any such asserted Tax liability. If Bancorp the Purchaser fails to give Shareholders the Seller prompt notice of an asserted Tax liability as required by this Section 8.05(b)7.04, then (i) if Shareholders are the Seller is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the appropriate administrative and or judicial forums, then Shareholders the Seller shall not have any obligation to indemnify the Purchaser for any loss or damage arising out of such asserted Tax liability, and (ii) if Shareholders are the Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholdersthe Seller, then any amount which Shareholders are the Seller is otherwise required to pay Bancorp the Purchaser pursuant to Section 8.01(a) this Article VII with respect to such liability shall be reduced by the amount of such detriment.
(cb) Shareholders The Seller may elect to direct, through counsel of their its own choosing and at their its own expense, any audit, claim for refund and or administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) this Article VII (any such audit, claim for refund audit or proceeding relating to an asserted Tax liability are referred to herein collectively as a "ContestCONTEST"). If Shareholders elect the Seller elects to direct the Contest of an asserted Tax liability, they shall, it shall within thirty (30) 30 calendar days of receipt of the notice of an asserted Tax liability (but not less than five (5) days before notify the due date Purchaser of any protest or other claim in respect thereof), notify Bancorp of their its intent to do so so, and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp the Purchaser shall cooperate in good faith and shall cause ▇▇▇▇▇ the Company or its successor to cooperate in good faith, at the Seller's expense, in each phase of such Contest. If Shareholders choose the Seller contests its obligation to indemnify the Purchaser under Section 7.01 and the Purchaser elects to proceed with the Contest, the Seller shall only be obligated to pay the Purchaser's expenses in connection with such Contest in the event it is determined that the Seller is obligated to pay such asserted liability under Section 7.01. If the Seller elects not to direct the Contest or fails to notify the Purchaser of its election as herein provided, the Purchaser or the Company may pay, compromise or contest such asserted liability, at the Seller's expense; provided, however, that if the Seller has acknowledged its obligations under Section 7.01 with respect to such asserted liability, the Purchaser may not contest such asserted liability. However, in such case, neither the Purchaser nor the Company (including any designated representative of either) may settle or compromise any asserted liability over the objection of the Seller; provided, however, that the Seller's consent to settlement or compromise shall not be unreasonably withheld (provided that in the event the Seller withholds consent, the Seller shall then be obligated to direct such Contest). In any event, each of the Purchaser (or the Company) and the Seller may participate, at its own expense, in the Contest. If the Seller chooses to direct the Contest, Bancorp the Purchaser shall promptly empower and shall cause ▇▇▇▇▇ the Company or its successor promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders the Seller as they it may designate to represent Bancorp the Purchaser or ▇▇▇▇▇ the Company or its successor in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders the Seller would be liable under Section 8.01(a)this Article VII.
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sykes Healthplan Services Inc)
Contests. (a) Shareholders will allow ▇▇▇▇▇ and If any Governmental Authority issues to the Company a written notice of its counsel intent to participate at audit, examine or conduct a proceeding, a written notice of its own expense in determination of an objection to an assessment with respect to Taxes or Tax Returns of the Company for a Pre-Closing Tax Period or a Straddle Period, or a written notice or inquiry with respect to any audits Taxes or the filing of a consolidated, combined or unitary Tax Return for a Pre-Closing Tax Period or a Straddle Period (a “Tax Claim”), Buyer shall notify Seller of an Affiliated Group its receipt of which ▇▇▇▇▇ was such Tax Claim within ten (10) Business Days following receipt, provided however, that the failure of the Buyer to notify Seller of its receipt of a member Tax Claim within ten (10) Business Days shall not relieve the Seller from liability pursuant to Section 6.03(a) except to the extent that the Seller is materially prejudiced as a consequence of such Returns relate to ▇▇▇▇▇failure. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp Seller shall promptly notify Shareholders in writing of the commencement of control any Tax audit or administrative or judicial proceeding or of Claim and any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) matter with respect to such liability shall be reduced by a Pre-Closing Tax Period of the amount of such detriment.
Company (c) Shareholders may elect to directa “Seller’s Tax Contest”), through counsel of their own choosing provided that Buyer, at its sole cost and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no the right to participate in any Seller’s Tax Contest that does not involve income Taxes and provided further that the Seller shall provide the Buyer with a copy of the final resolution of any Seller’s Tax Contest and any other information reasonably requested by Buyer concerning any Seller’s Tax Contest, provided that such requests relate solely to information of the Company. The Buyer shall control any Tax Claim that is not a Seller’s Tax Contest (ya “Buyer’s Tax Contest”), provided that Seller, at its sole cost and expense, shall have the right to participate in any Buyer’s Tax Contest that relates to a Straddle Period Return. The party controlling a Tax Claim described in the preceding sentence shall not agree to settle such Tax Claim if such settlement could affect the Tax liability of the other party without the written consent of such other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided that if any party (the “First Party”) Bancorp or ▇▇▇▇▇ may payshall reasonably withhold consent for a settlement, compromise or contest the other party (the “Second Party”) shall be entitled to enter into such asserted liability in their sole discretionsettlement without the consent of the First Party so long as the Second Party agrees to indemnify the First Party for any adverse Tax consequences suffered by the First Party as a result of such settlement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Contests. (a) Shareholders will allow ▇▇▇▇▇ Each of Purchaser, the Company and its counsel the Included Subsidiaries, on the one hand, and Seller, on the other hand, (the "Recipient") shall notify the chief tax officer of the other party in writing within 15 days of receipt by the Recipient of written notice of any pending or threatened audit, deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim ("Tax Claim") that could affect the liability for Taxes of such other party, and such notice shall provide the details of such Tax Claim. If the Recipient fails to participate at its own expense give such prompt notice to the other party, the Recipient shall not be entitled to indemnification for any Taxes arising in any audits of a consolidated, combined or unitary connection with such Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member Claim if and to the extent that such Returns relate failure to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would give notice materially and adversely affect ▇▇▇▇▇ after affects the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Dateother party.
(b) After Seller shall have the Closingsole right to represent and control the Acquired Companies' interests in any Tax Claim relating to taxable periods ending on or before the Closing Date and to employ counsel of its choice at its expense; provided, Bancorp however, that Seller shall promptly notify Shareholders have no right to represent the -------- ------- Acquired Companies' interest in any such Tax Claim unless Seller shall have first notified Purchaser in writing of Seller's intention to do so within twenty (20) days of notification of the commencement Tax Claim by Purchaser. Purchaser may participate in such Tax Claim at its own expense. In the case of a Split Tax Period, Seller shall be entitled to participate at its expense in any Tax Claim relating in any part to Taxes attributable to the Pre-Closing Period and, with the prior written consent of Purchaser, at Seller's sole expense, may assume the control of such entire Tax Claim. None of Purchaser, any of its Affiliates, or any Acquired Company may settle or otherwise dispose of any Tax audit Claim for which Seller may have a liability under this Agreement, or administrative or judicial proceeding or which may result in an increase in Seller's liability under this Agreement, without the prior written consent of any demand or claim on Bancorp or ▇▇▇▇▇ whichSeller, if determined adversely to which consent may not be unreasonably withheld, unless Purchaser and the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability Acquired Companies fully indemnify Seller in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) writing with respect to such liability shall in a manner satisfactory to Seller. Neither Seller nor any of its affiliates may settle or otherwise dispose of any Tax Claim for which Purchaser or the Acquired Companies may have a liability under this Agreement, or which may result in an increase in Purchaser's or the Acquired Companies' liability under this Agreement, without the prior written consent of Purchaser, which consent may not be reduced by unreasonably withheld, unless Seller fully indemnifies Purchaser and the amount of Acquired Companies in writing with respect to such detrimentliability in a manner satisfactory to Purchaser.
(c) Shareholders Seller shall use its reasonable best efforts to minimize any interest, penalties, and other additions to Taxes that may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability be payable with respect to any Tax Claim for which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of Seller has the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate right to represent Bancorp or ▇▇▇▇▇ in and control the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)Acquired Companies' interests.
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Sources: Merger Agreement (GSL Corp)
Contests. If an audit is commenced, an adjustment is proposed or any other claim is made by any Taxing Authority with respect to a Tax liability of the Company or the Subsidiary relating to a Pre-Closing Tax Period for which the Seller could be liable under Article XII, Buyer shall promptly notify the Seller of such audit or such proposed adjustment or such claim. If the Seller so requests and at the Seller's expense, Buyer shall cause the relevant entity (aBuyer, the Company or the Subsidiary, or any of their respective successors) Shareholders will allow ▇▇▇▇▇ to contest such claim on audit or by appropriate claim for refund or credit of Taxes or in a related administrative or judicial proceeding, and its counsel to participate shall permit the Seller, at its own expense in any audits option and expense, to control the prosecution and settlement of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement of any Tax audit or refund claim or related administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely but only with respect to those specific matters that could reasonably affect the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of the Seller, including any notice liability hereunder, or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails their right to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b)payment; and, then (i) if Shareholders are precluded where reasonably deemed necessary by the failure Seller and in accordance with the foregoing, Buyer shall cause the relevant entity to give prompt notice from contesting authorize by appropriate powers of attorney such persons as the asserted Tax liability in both the administrative and judicial forums, then Shareholders Seller shall not have any obligation designate to indemnify for any loss arising out of represent such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) entity with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, audit or refund claim for refund and or related administrative or judicial proceeding involving and to settle or otherwise resolve any asserted such proceeding but only as it specifically relates to such matters for which Seller confirms in writing its sole liability with respect for the Tax matters at issue. The Seller shall keep Buyer reasonably informed of the progress of any such claim, action or proceeding and shall permit Buyer to which indemnity may participate therein, at Buyer's expense. Buyer shall further execute and deliver, or cause to be sought executed and delivered, to the Seller or its designee all instruments and documents reasonably requested by the Seller to implement the provisions of this Section 8.8(c). Any refund of Taxes obtained by Buyer or the affected entity pursuant to this Section 8.8(c) shall be paid promptly to the Seller to the extent the refund relates to Taxes funded by Seller after Closing or to the extent payable to Seller under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a8.8(b).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇11.2.1. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp Buyer shall promptly notify Shareholders the Stockholders’ Representative in writing of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding Action or of any demand or claim on Bancorp or ▇▇▇▇▇ whichany Buyer Indemnified Person that, if determined adversely to the taxpayer or after the lapse of time would time, could be grounds for indemnification under Section 8.01(a)by the Company Securityholders pursuant to this Agreement. Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability Liability in reasonable detail and shall include copies of any notice or other document received from any Tax Governmental Authority in respect of any such asserted Tax liabilityLiability.
11.2.2. In the case of a Tax Action that relates to a taxable period ending on or before the Closing Date and in respect of which the Company Securityholders could have an indemnification obligation pursuant to this Agreement, after taking into account the provisions hereof (a “Contest”), and provided such Tax Action does not affect the Taxes of Buyer or its Affiliates (including the Surviving Corporation) in a taxable period (or portion thereof) beginning after the Closing Date, the Stockholders’ Representative shall have the sole right, on behalf of the Company Securityholders and at their expense to participate in the defense of any Contest that is the subject of notice given by Buyer pursuant to Section 11.2.1 and the right to control the conduct of such Contest with counsel of their choice reasonably satisfactory to Buyer so long as the Stockholders’ Representative notifies Buyer in writing within fifteen (15) days after Buyer has given notice of the Contest that the Company Securityholders will control such Contest. Buyer may retain separate co-counsel at its sole cost and expense and participate in the defense of the Contest. Neither the Company Securityholders nor the Stockholders’ Representative will consent to the entry of any judgment or enter into any compromise or settlement with respect to a Contest without the prior written consent of Buyer, such consent not to be unreasonably withheld, conditioned or delayed. If Bancorp fails to give Shareholders prompt Stockholders’ Representative does not deliver the notice of an asserted Tax liability as required contemplated by this Section 8.05(b), then clause (i) above within fifteen (15) days after Buyer has given notice of a Contest, or if Shareholders are precluded by such Contest does affect the failure Taxes of Buyer or its Affiliates (including the Surviving Corporation) in a taxable period beginning after the Closing Date, Buyer shall control such Contest; provided that the Stockholders’ Representative may retain separate co-counsel at its sole cost and expense and participate in the defense of the Contest and Buyer may not consent to give prompt notice from contesting the asserted Tax liability entry of any judgment or enter into any compromise or settlement with respect to the Contest without the prior written consent of the Stockholders’ Representative, such consent not to be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary in both the administrative and judicial forumsthis Agreement, then Shareholders Buyer shall not be required to provide any access to or to permit any inspection of any Tax Return of the Affiliated Group of the Buyer or its Affiliates (including, for the avoidance of doubt, with respect to the Company following the Closing Date), and the Stockholders’ Representative shall not participate in or control any Contest to the extent such Contest relates to any Tax Return of the Affiliated Group of the Buyer or its Affiliates; provided that if the Company Securityholders could have any an indemnification obligation pursuant to indemnify for any loss arising out this Agreement in respect of such asserted Tax liabilityContest, the Buyer (i) shall keep the Stockholders’ Representative reasonably informed of the on-going proceeding and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over such Contest without the objection prior written consent of Shareholders. If Shareholders elect the Stockholders’ Representative, which consent (A) shall not to direct be unreasonably withheld, delayed or conditioned and (B) shall be based on such information (other than such Tax Returns of the Contest Affiliated Group of the Buyer or its Affiliates), calculations and fail methodologies provided by the Buyer (and certified by the an officer of the Buyer) as are reasonably necessary for the Stockholders’ Representative to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.consent. 74163855_1
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ Buyer and its counsel the Sellers agree to give prompt notice to each other of any proposed adjustment to Taxes for any periods of a Centennial Entity ending on or prior to the Closing Date or any Pre-Closing Partial Period. Buyer and the Sellers shall cooperate with each other in the conduct of any audit or other proceeding involving a Centennial Entity for such periods and each party may participate at its own expense in any audits expense. Sellers shall have the right to control the conduct of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner or proceeding for which would adversely affect ▇▇▇▇▇ after the Sellers agree that any resulting Tax allocable to any period prior to and including the Closing Date unless is set forth by the indemnity covered in Section 9.4 of this Agreement, (such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichproceeding, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇a "Seller's Contest") describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then provided that: (i) if Shareholders are precluded by Sellers shall keep Buyer informed regarding the failure to give prompt notice from contesting the asserted Tax liability in both the administrative progress and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date substantive aspects of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Seller's Contest and (ii) neither Bancorp nor ▇▇▇▇▇ Sellers shall not compromise or settle any Seller's Contest if such compromise or compromise any asserted liability over settlement would have the objection effect of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and increasing any Tax liability of a Centennial Entity or (y) Bancorp otherwise materially and adversely affect any item or ▇▇▇▇▇ may payTax attribute of a Centennial Entity, compromise or contest in each case for any taxable period ending after the Closing Date, without obtaining Buyer's consent, which consent shall not be unreasonably withheld. If Sellers choose to direct a Seller's Contest, Buyer shall cause powers of attorney authorizing Seller Representative to represent a Centennial Entity before the relevant taxing authority and such asserted liability in their sole discretionother documents as are reasonably necessary for Seller Representative to control the conduct of any Sellers' Contest, consistent with the terms of this Section 9.1.6.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Beasley Broadcast Group Inc)
Contests. Acquiror shall promptly notify the Member Representative in writing upon receipt by Acquiror or any Affiliate of Acquiror (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to including the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and Acquired Companies after the Closing Date.
) of written notice of any inquiries, claims, assessments, audits or similar events with respect to Taxes relating to a taxable period ending on or before the Closing Date for which the Seller Parties could reasonably be expected to be liable (b) After any such inquiry, claim, assessment, audit or similar event, a “Tax Matter”). The Member Representative shall have the Closing, Bancorp shall promptly notify Shareholders in writing authority to represent the interests of the commencement Acquired Companies with respect to any Tax Matter before the IRS, any other taxing authority, any other Governmental Authority or any court and shall have the sole right to control the defense, compromise or other resolution of any Tax audit Matter, including responding to inquiries, filing Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or administrative notice of Tax deficiency or judicial proceeding other adjustment of Taxes of, or relating to, a Tax Matter; provided, that the Member Representative shall not enter into any settlement of or otherwise compromise any demand Tax Matter that materially adversely affects or claim on Bancorp may materially adversely affect the Tax liability of Acquiror, or ▇▇▇▇▇ which, if determined adversely to the taxpayer or Acquired Companies for any period ending after the lapse Closing Date, including the portion of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing Straddle Period that is after the asserted Tax liability in reasonable detail and shall include copies Closing Date, without the prior written consent of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b)Acquiror, then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders which consent shall not have any obligation to indemnify for any loss arising out of such asserted Tax liabilitybe unreasonably withheld, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) conditioned or delayed. The Member Representative shall keep Acquiror informed with respect to such liability shall be reduced by the amount commencement, status and nature of such detriment.
(c) Shareholders may elect to directany Tax Matter. The Member Representative shall, through counsel of their own choosing and in good faith, allow Acquiror, at their own Acquiror’s sole expense, any audit, claim for refund and administrative to make non-binding comments to Member Representative regarding the conduct of or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (positions taken in any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)proceeding.
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Valeant Pharmaceuticals International)
Contests. (a1) Shareholders will allow ▇▇▇If a written claim is made against Lessor or if any proceeding is commenced against Lessor (including a written notice of such proceeding) for Taxes as to which Lessee could be liable for payment or indemnity hereunder, such Lessor shall promptly give Lessee notice in writing of such claim (PROVIDED, HOWEVER, that the failure to provide such notice shall not affect Lessee's obligations hereunder to the Lessor unless such failure shall effectively preclude Lessee's right to contest such claim) and shall not take any action with respect to such claim or Tax without the consent of Lessee for thirty (30) days following the receipt of such notice by Lessee; PROVIDED, HOWEVER, that, if Lessor shall be required by Law to take action prior to the end of such 30-day period, Lessor shall, in such notice to Lessee, so inform Lessee, and Lessor shall take no action without the consent of Lessee for as long as it is legally able to do so (it being understood that Lessor shall be entitled to pay the Tax claimed and sue for a refund prior to the end of such 30-day period if (i)(A) t▇▇ failure to so pay the Tax would result in penalties (unless immediately reimbursed by Lessee) or (B) the failure to so pay would result in criminal penalties and (ii) Lessor uses its counsel good faith efforts to participate at its own expense take any action so required in any audits connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of a consolidatedthe contest). In addition, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member Lessor shall (PROVIDED that Lessee shall have agreed to keep such information confidential other than to the extent that such Returns relate necessary in order to ▇▇▇▇▇. Shareholders will not settle any such audit contest the claim in writing in a manner reasonable satisfactory to Lessor) furnish Lessee with copies of any requests for information from any taxing authority relating to such Taxes with respect to which would Lessee may be required to indemnify hereunder. If requested by Lessee in writing within thirty (30) days or such shorter period as may be required by Law after its receipt of such notice, Lessor shall, at the expense of Lessee (including all reasonable out-of-pocket costs, and reasonable in-house or outside attorney and accountants fees), in good faith contest (or, if permitted by applicable law, allow Lessee to contest), through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by resisting payment thereof, not paying the same except under protest if protest is necessary and proper or if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Lessee in writing, Lessor shall appeal any adverse administrative or judicial decision, except that Lessor shall not be required to (nor shall Lessee have the right to) pursue any appeals to the United States Supreme Court. If and to the extent Lessor by exercise of reasonable good faith efforts is able to separate the contested issue or issues (which cannot include income tax issues) from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Documents without, in the good faith judgment of Lessor, materially adversely affect ▇▇▇▇▇ after affecting it, Lessor shall permit Lessee to control the Closing Date conduct of any such proceeding and shall provide to Lessee such information or data that is in such Lessor's control or possession that is reasonably necessary to conduct such contest and Lessee shall consult with the Lessor and keep it reasonably informed of the progress of such contest. In the case of a contest controlled by Lessor, Lessor shall conduct and control such contest, PROVIDED Lessor consults with Lessee in good faith regarding the manner of contesting such claim and shall keep Lessee reasonably informed regarding the progress of such contest but Lessor shall have ultimate control over all aspects of such contest. Lessor shall not fail to take any action expressly required by this SECTION 3(i)(D) (including, without limitation, any action regarding an appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of Lessee except as contemplated by SECTION 3(i)(D) herein.
(2) Notwithstanding the foregoing, in no event shall Lessor be required to take any action (or to permit Lessee to take any action) unless and until (A) Lessee shall have agreed to pay Lessor on demand on an After-tax Basis all reasonable costs and expenses that Lessor shall incur in connection with contesting such settlement would claim, (including without limitation, all costs, expenses, losses, reasonable legal and accounting fees, disbursements, penalties, fines, additions to Tax or interest thereon), (B) if such contest shall involve the payment of the claim, Lessee shall advance the amount thereof plus (to the extent indemnified hereunder) interest, penalties and additions to tax with respect thereto that are required to be paid prior to the commencement of such contest on an interest-free basis and with no additional net after-tax cost to Lessor (and Lessor shall promptly pay to Lessee any net realized tax benefits resulting from any imputed interest deduction arising from such interest free advance from Lessee plus any net tax benefits resulting from making any such payment), (C) Lessor shall have reasonably determined that the action to be taken will not result in any material risk of forfeiture, foreclosure, sale or loss of the Aircraft or the creation of any Lien (other than a Permitted Lien) (unless Lessee shall have adequately bonded such Lien or otherwise made provisions to protect the interests of Lessor in a manner reasonably satisfactory to Lessor in its sole discretion), (D) no Event of Default shall have occurred and be continuing at the time the contest is begun unless Lessee has provided security for its obligations hereunder by advancing to Lessor before proceeding with such contest, the amount of the Tax being contested, plus any interest and penalties and an amount estimated in good faith by Lessor for reasonable expenses, (E) in the case of a Person contest that owned ▇▇▇▇▇ both before and after is being pursued by Lessor, the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing aggregate amount of the commencement claim together with the amount of all related claims that have been or could be raised with any or all of the other Aircraft leased by Lessor to Lessee or raised in any other audit for which Lessee would have an indemnity obligation under this SECTION 3(i)(D) is at least $50,000, and (F) if requested prior to or during the contest by Lessor, independent tax counsel selected by Lessee and reasonably acceptable to Lessor, renders to Lessor a written opinion that there is a reasonable basis (under the standard set forth in ABA Formal Opinion 85-352 or any successor thereto) for contesting such claim. In the case of any Tax audit contest controlled by the Lessee hereunder, Lessor (including its counsel (at Lessor's expense)) shall have the right to participate in all proceedings and Lessee shall consult with Lessor in good faith regarding the manner of contesting such claim and shall keep Lessor reasonably informed regarding the progress of such contest and, if requested by Lessor, provide an opinion of tax counsel selected by Lessee and reasonably acceptable to Lessor to the effect that there is a Reasonable Basis for contesting such claims. Notwithstanding the foregoing, Lessee shall not be permitted to control or administrative conduct any contest if such contest involves Taxes based on or judicial proceeding measured by the gross or net income of Lessor and PROVIDED, that if Lessor determines in good faith that it is reasonably likely that such contest may have a material adverse impact on it, Lessor may retain or reassert control of any demand contest Lessee would otherwise be permitted to contest, and if Lessor shall release, waive, compromise or settle any claim on Bancorp or ▇▇▇▇▇ whichwhich may be indemnifiable by Lessee pursuant to this SECTION 3(i) without the written permission of Lessee, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any Lessee's obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) Lessor with respect to such liability claim (and any claim the contest of which is materially prejudiced as a result of the release, waiver, compromise or settlement) shall be reduced terminate, subject to this SECTION 3(i)(D), and subject to SECTION 3(i)(C), Lessor shall repay to Lessee any amount previously paid or advanced to Lessor with respect to such claim (but not amounts paid or advanced for costs and expenses of any contests to the extent such amounts have already been expended) plus interest at the rate that would have been payable by the amount relevant taxing authority with respect to a refund of such detrimentTax.
(c3) Shareholders may elect Notwithstanding anything contained in this SECTION 3(i) to directthe contrary, through counsel Lessor shall not be required to contest any claim if the subject matter thereof shall be of their own choosing a continuing nature and at their own expenseshall previously have been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this SECTION 3(i)(D), any audit, claim for refund and administrative unless there shall have been a change in Law (or judicial proceeding involving any asserted liability interpretation thereof) or a change in facts after the date with respect to which indemnity may be sought under Section 8.01(a) (any such auditprevious contest shall have been decided, claim for refund or proceeding relating and Lessor shall have received, at Lessee's expense, an opinion of independent tax counsel selected by Lessee and reasonably acceptable to an asserted Tax liability are referred Lessor to herein collectively the effect that as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase result of such Contest. If Shareholders choose to direct the Contestchange in Law (or interpretation thereof) or change in facts, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and it is more likely than not that Lessor will prevail in such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)contest.
(d4) If Shareholders elect not Nothing contained in this SECTION 3(i) shall require Lessor to direct contest or permit Lessee to contest a claim which it would otherwise be required to contest pursuant to this SECTION 3(i) if Lessor shall waive payment by Lessee of any amount that might otherwise be payable by Lessee under this SECTION 3(i) by way of indemnity in respect of such claim (and any other claim for Taxes with respect to any other taxable year the Contest and acknowledge in writing, in form and substance satisfactory contest of which is effectively precluded by Lessor's declination to Bancorp, their obligation take action with respect to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionclaim).
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after After the Closing Date.
(b) After , the Closing, Bancorp Purchaser shall promptly notify Shareholders the Sellers in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp the Purchaser, the Company or ▇▇▇▇▇ which, if determined adversely to the taxpayer Subsidiary which may affect the Tax Liability of the Sellers or after any affiliate of the lapse of time would be grounds for indemnification under Section 8.01(aSellers (including the Company). Such notice shall contain factual information (to the extent known to Bancorp the Purchaser, the Company or ▇▇▇▇▇the Subsidiary) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority taxing authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the The Purchaser's failure to give prompt notice from contesting to the asserted Tax liability in both the administrative and judicial forums, then Shareholders Sellers as provided hereunder shall not have any obligation affect the Sellers' liabilities under this section except to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders the extent the Sellers are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detrimentprejudiced thereby.
(cb) Shareholders The Sellers may elect to direct, through counsel of their own choosing and at their its own expense, any audit, claim for refund and administrative or judicial proceeding to the extent involving any asserted liability arising with respect to which indemnity may be sought under Section 8.01(a) the Pre-Closing Period (any such audit, claim for refund or proceeding relating to an asserted Tax liability are is referred to herein collectively as a "Contest"). If Shareholders the Sellers elect to direct the Contest of an asserted Tax liabilitya Contest, they shall, within thirty (30) 30 calendar days of receipt of the notice of asserted Tax liability pursuant to paragraph (but not less than five (5a) days before the due date of any protest or other claim in respect thereof)this Section 9.05, notify Bancorp the Purchaser of their intent to do so so, and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp the Purchaser shall cooperate and shall cause ▇▇▇▇▇ the Company and the Subsidiary to cooperate cooperate, at the expense of the Sellers, in each phase of such Contest. If Shareholders choose In any event, prior to direct Closing, the Contest, Bancorp Purchaser and the Sellers shall promptly take all steps to empower and shall cause ▇▇▇▇▇ the Company and the Subsidiary to promptly to empower (by power-of-power of attorney and such other documentation as may be necessary and appropriate) such representatives of Shareholders the Sellers as they the Sellers may designate to represent Bancorp the Company and the Subsidiary for any -47- 48 audit, claim for refund and administrative or ▇▇▇▇▇ in judicial proceeding for the Contest insofar as years 1997, 1998, 1999 and 2000. If the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders Sellers elect not to direct the Contest and acknowledge in writingor fail to notify the Purchaser of their election as herein provided, the Purchaser, the Company and/or the Subsidiary may pay, compromise or Contest, at the Seller's expense, such asserted Tax liability. However, in form each such case, none of the Purchaser, the Company, or the Subsidiary may settle or compromise any asserted Tax liability without the express written consent of the Sellers; provided, however, that such consent to settlement or compromise shall not be unreasonably withheld; and substance satisfactory to Bancorpprovided, further, that any settlement or compromise in violation of the preceding sentence shall release the Sellers of their obligation pay such Taxes pursuant to indemnify Bancorp in full thereforSection 9.01 hereof. In any event, then (i) Shareholders the Sellers may participate, at their own expense, in the Contest. If the Sellers choose to direct the Contest, the Purchaser shall promptly empower and shall cause the Company and the Subsidiary to promptly empower (by power of attorney and such other documentation as may be necessary and appropriate) such representatives of the Sellers as it may designate to represent the Purchaser or the Company and the Subsidiary in the Contest. If any Contest that is directed by the Sellers includes an issue the resolution of which would have a Material Adverse Effect on the Company or the Subsidiary in a period or portion thereof ending after the Closing Date the Sellers shall consult with the Purchaser and consider in good faith all comments made with respect thereto.
(iic) Purchaser shall have the sole right to control any Contest arising with respect to a period (or portion of a period) beginning after the Closing Date, provided however, that if a potential adjustment resulting from such Contest would give rise to a tax liability to the Sellers or any affiliate of the Sellers with respect to the Pre-Closing Period, the Sellers shall have the right to participate in such Contest. Additionally, in each such case, neither Bancorp the Purchaser nor ▇▇▇▇▇ shall not the Company may settle or compromise any asserted Tax liability over without the objection express written consent of Shareholders. If Shareholders elect the Sellers; provided, however, that such consent to settlement or compromise shall not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionbe unreasonably withheld.
Appears in 1 contract
Sources: Purchase Agreement (Dial Corp /New/)
Contests. (ai) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after After the Closing Date.
(b) After , the ClosingPurchaser shall, Bancorp or shall promptly cause the Purchased Subsidiary to, notify Shareholders the Sellers in writing of promptly upon the commencement of any Tax audit or administrative or judicial proceeding or the receipt by the Purchaser or the Purchased Subsidiary of any request issued by any Taxation Authority for documents in connection with Taxes which are the subject of the indemnities provided for in Section 5.11(a) (but in any event within no later than ten (10) Business Days of such receipt by the Purchaser or the Purchased Subsidiary) which, could give rise to a Sellers' liability under Section 5.11, provided the giving of such notice will not be a condition precedent to the liability of the Sellers under this Section 5.11, and shall also separately notify the Sellers in writing of any proposed or final demand or claim on Bancorp the Purchaser or ▇▇▇▇▇ the Purchased Subsidiary which, if determined adversely to the taxpayer or after the lapse of time time, would be grounds for indemnification by the Tax Indemnifying Parties under Section 8.01(a5.11(a). Such Each such notice shall contain factual information (to the extent known to Bancorp the Purchaser or ▇▇▇▇▇the Purchased Subsidiary) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. .
(ii) If Bancorp fails the Purchaser or the Purchased Subsidiary fail to give Shareholders the Sellers prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i5.11(h)(i) and if Shareholders the Sellers are precluded by the such failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders the Sellers shall not have any obligation to indemnify for any loss or damage arising out of such asserted Tax liability, and (ii) if Shareholders the Sellers are not so precluded from contesting but such failure to give prompt notice results in a additional liabilities, expenses or other detriment to Shareholdersthe Sellers, then any amount which Shareholders the Sellers otherwise are otherwise required to pay Bancorp to the Purchaser or the Purchased Subsidiary pursuant to this Section 8.01(a) 5.11 with respect to such liability shall be reduced by the amount of such detriment; provided however, that such detriment is duly substantiated by the Sellers.
(ciii) Shareholders The Sellers may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving to the extent it involves any asserted liability with respect to which indemnity by the Sellers may be sought under this Section 8.01(a) 5.11 (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders Sellers choose to direct the Contest, Bancorp the Purchaser or the Purchased Subsidiary, as applicable, shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-power of attorney and such other documentation as may be appropriate) such of Sellers' representatives of Shareholders as they Sellers may designate to represent Bancorp the Purchaser or ▇▇▇▇▇ in the Contest Purchased Subsidiary insofar as the Contest involves an asserted Tax liability for which Shareholders the Sellers would be liable under this Section 8.01(a5.11.
(iv) The Sellers shall consult with respect to, and a reasonable amount of time in advance of, the settlement of any Contest controlled by the Sellers pursuant to this paragraph, and the Sellers may not settle any such Contest or transmit any material communication (whether oral, in writing or otherwise) to any Taxation Authority in connection with such Contest, or transmit any material communication (whether oral, in writing or otherwise) to any Taxation Authority in connection with such Contest, without the prior written consent of the Purchaser or the Purchased Subsidiary, as applicable (which consent shall not be unreasonably withheld or delayed).
(dv) If Shareholders the Sellers elect not to direct the Contest and acknowledge in writingContest, in form and substance satisfactory to Bancorpthe Purchaser or the Purchased Subsidiary, their obligation to indemnify Bancorp in full thereforas the case may be, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability as it sees fit, and shall be reimbursed by the Sellers for reasonable costs of outside tax advisors and related professionals and reasonable out of pocket costs (for all of which appropriate supporting documentation shall be provided) incurred in connection with a Tax liability ultimately determined to be indemnifiable by the Sellers hereunder.
(vi) The Sellers and Purchaser shall cooperate in respect of any Contest. Such cooperation and information shall include providing copies of relevant Tax Returns or portions thereof, together with accompanying schedules and related work papers and documents relating to rulings or other determinations by Taxation Authorities. The Sellers and the Purchaser will make themselves (and their sole discretionrespective employees) available, on a mutually convenient basis, to provide explanations of any documents or information provided under this Section 5.11.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tropical Sportswear International Corp)
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after After the Closing Date.
(b) After , each of Sellers and the Closing, Bancorp Acquiror shall promptly notify Shareholders the other party in writing upon receipt of written notice of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp a PMSI Indemnitee, the Acquiror or ▇▇▇▇▇ the Transferred Subsidiaries or the Belgian Subsidiaries which, if determined adversely to the taxpayer or after the lapse of time time, would be grounds for indemnification by the other party under Section 8.01(a)8.7. Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇the notifying party) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Taxing Authority in respect of any such asserted Tax liability. If Bancorp fails Failure by any indemnitee under Section 8.7 to give Shareholders any indemnitor under Section 8.7 prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders 8.8 shall not have any affect the indemnification obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but indemnitor except to the extent such failure to give prompt notice results in a actual material detriment to Shareholders, then any amount which Shareholders are otherwise required the indemnitor.
(b) In the case of an audit or administrative or judicial proceeding that relates to pay Bancorp pursuant to Section 8.01(a) a period ending on or before the Closing Date with respect to such liability the Transferred Assets, PMSI and Sellers shall be reduced by have the amount sole right, at their expense, to control the conduct of such detrimentaudit or proceeding; provided, however, that PMSI and Sellers shall consult with the Acquiror to the extent any proposed adjustment may have a material effect on the Taxes of the Acquiror or the Transferred Subsidiaries for taxable periods beginning after the Closing Date. The Acquiror shall control the defense and settlement of any contest relating to taxable periods or portions thereof relating to the Transferred Assets that begin on or after the Closing Date, provided, however, the Acquiror shall consult with PMSI and the Sellers to the extent any proposed adjustment may have a material effect on the Taxes of PMSI or the Sellers for taxable periods beginning before the Closing Date.
(c) Shareholders may elect to direct, through counsel In the case of their own choosing and at their own expense, any audit, claim for refund and an audit or administrative or judicial proceeding involving any asserted liability that relates to a period ending on or before the Belgian Closing Date with respect to which indemnity the Belgian Subsidiaries, the Sellers shall have the sole right, at their expense, to control the conduct of such audit or proceeding; provided, however, that PMSI and the Sellers shall consult with the Acquiror to the extent any proposed adjustment may be sought under Section 8.01(a) (have a material effect on the Taxes of the Acquiror, the Belgian Subsidiaries or the Transferred Subsidiaries for taxable periods beginning after the Belgian Closing Date. The Acquiror shall control the defense and settlement of any such audit, claim for refund or proceeding contest relating to an asserted Tax liability are referred taxable periods or portions thereof with respect to herein collectively as the Belgian Subsidiaries that begin on or after the Belgian Closing Date, provided, however, the Acquiror shall consult with PMSI and the Sellers to the extent any proposed adjustment may have a "Contest"). If Shareholders elect material effect on the Taxes of PMSI and the Sellers for taxable periods with respect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days Belgian Subsidiaries beginning before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)Belgian Closing Date.
(d) If Shareholders elect not With respect to direct periods beginning before the Contest Closing Date and acknowledge in writingending after the Closing Date with respect to the Transferred Assets (and with respect to periods beginning before the Belgian Closing Date and ending after the Belgian Closing Date with respect to the Belgian Subsidiaries), in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders each party may participate, at their own expense, participate in the Contest an audit or proceeding which relates to any such period and (ii) such audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment; provided that neither Bancorp nor ▇▇▇▇▇ party shall settle any such audit or proceeding without the consent of the other, which consent shall not settle or compromise any asserted liability over the objection of Shareholdersbe unreasonably withheld. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate The principle set forth in the Contest preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in situations in which separate issues are otherwise controlled hereunder by the Acquiror, PMSI and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionthe Sellers.
Appears in 1 contract
Sources: Purchase Agreement (Pharmaceutical Marketing Services Inc)
Contests. The Sellers and their duly appointed representatives shall have the exclusive authority to control any audit or examination by any taxing authority, to initiate any claim for refund, to amend any Tax return and to contest, resolve and defend against any assessment for additional Taxes, or other adjustment of Taxes of or relating to any liability of the Target or its Subsidiaries for Taxes reflected on any Tax returns covering any Pre-Closing Periods; PROVIDED, HOWEVER, that (a) Shareholders will allow ▇▇▇▇▇ and neither the Sellers nor any of their duly appointed representatives shall, without the prior written consent of the Buyer, which consent shall not be unreasonably withheld, file any claim for refund, amend any Tax return or enter into any settlement of any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Buyer or any of its counsel to participate at its own expense in Affiliates for any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ period beginning after the Closing Date unless such settlement would be reasonable in the case (a "POST-CLOSING PERIOD") or any portion of a Person that owned ▇▇▇▇▇ both before and an Overlap Period beginning after the Closing Date.
, and (b) After neither the ClosingSellers nor any of their duly appointed shall, Bancorp shall promptly notify Shareholders in writing without the prior consent of the commencement Buyer, which consent shall not unreasonably be withheld, enter into any settlement of any Tax contest or otherwise compromise any issue that would increase any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Buyer of any amount under Section 9.3 unless the Sellers shall have agreed to indemnify the Buyer for payment of such Taxes. Buyer and its duly appointed representatives shall have the exclusive authority to control any audit or administrative other proceeding relating to Taxes for any taxable year or judicial proceeding or other the Closing Date; PROVIDED, HOWEVER, that (a) neither Buyer, the Target nor any of their duly appointed representatives shall, without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, enter into any settlement of any demand contest or claim otherwise compromise any issue that affects or may affect the Tax liability of the Sellers or any of their affiliates for any Pre-Closing Period or any portion of the Overlap Period ending on Bancorp the Closing Date, and (b) neither Buyer, the Target nor any of their duly appointed representatives shall, without the prior consent of the Sellers, which consent shall not unreasonably be withheld, enter into any settlement of any contest or ▇▇▇▇▇ which, if determined adversely otherwise compromise any issue that would reduce any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Sellers of any amount under Section 9.3 unless Buyer shall have waived or caused to be waived for itself and the Target any right to indemnification for Taxes from the Sellers. The Sellers shall be entitled to any Tax refund relating to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (Target and its Subsidiaries to the extent known such Tax refund relates to Bancorp any Pre-Closing Period or ▇▇▇▇▇) describing any portion of the asserted Tax liability Overlap Period ending on the Closing Date, unless such refund has been recorded as an Asset on the Closing Balance Sheet in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability case Buyer shall be reduced by the amount of such detrimententitled thereto.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidatedIn the event Purchaser, combined Sellers or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement Parent receives written notice of any Tax audit or examination, claim, settlement, proposed adjustment, administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichproceeding, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from matter ("Tax Claim") related to any Pre-Closing Taxes, Transfer Taxes or Overlap Period Taxes, Purchaser, Sellers or Tax Authority Parent, as the case may be, shall notify the other Parties in respect writing as soon as reasonably practical (but in no event more than ten (10) Business Days) after receipt of any such asserted Tax liabilitynotice. If Bancorp fails to give Shareholders prompt notice of an asserted either Seller or Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability Parent notify Purchaser in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, writing within thirty (30) calendar days of Business Days following receipt of such written notice they intend to exercise their rights pursuant to this Section 8.7, they shall be entitled to control the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest defense, prosecution, settlement or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase compromise of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participateClaim, at their own expense. Purchaser shall take such action in contesting such Tax Claim as Sellers or Tax Parent shall reasonably request from time to time, including the selection of counsel and experts and execution of powers of attorney. Purchaser shall not make any payments of such Tax Claim for at least thirty (30) days (or such shorter period as may be required by applicable Law) after giving the notice required by this Section 8.7, shall give the Sellers and Tax Parent any information requested relating to such Tax Claim, shall give any Tax Authority any information requested by Sellers or Tax Parent relating to such Tax Claim, and otherwise shall cooperate with and make internal resources available to the Sellers and Tax Parent in good faith in order to effectively contest any such Tax Claim. Purchaser shall not settle or otherwise compromise any such Tax Claim with any Taxing Authority or prosecute such contest to a determination in court or other tribunal or initial or appellate jurisdiction unless instructed to do so by the Contest Sellers or Tax Parent. Any of the Sellers or Tax Parent may settle or otherwise compromise any such Tax Claim without Purchaser's prior written consent, except that if as a result of such settlement or compromise the Taxes payable by Purchaser would be materially increased, none of Sellers or Tax Parent may settle or compromise such matter without Purchaser's prior written consent, which consent shall not be unreasonably withheld. In connection with any proceeding taken with respect to such matters, (i) Sellers and Duke America shall keep Purchaser informed of all material developments and events relating to such matters if involving a material liability for Taxes and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders Purchaser shall have no right the right, at its sole expense, to participate in the Contest any such proceedings. Purchaser shall cooperate with Sellers and (y) Bancorp or ▇▇▇▇▇ may payTax Parent by giving them and their representatives, compromise or contest such asserted liability in their sole discretionon prior reasonable notice, reasonable access and cooperation during normal business hours to all information, books and records pertaining to Transfer Taxes, Pre-Closing Taxes and Overlap Period Taxes.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(bi) After the Closing, Bancorp each party shall promptly notify Shareholders in writing the other party of any demand, claim or notice of the commencement of any a Tax audit Proceeding received with respect to Taxes for which OpCo or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichBuyer is liable pursuant to this Agreement; provided, if determined adversely however, that a party’s failure to give such notice will not affect the other party’s rights to indemnification under this Section 6.1 except to the taxpayer or after extent that the lapse of time would be grounds for indemnification under Section 8.01(a)other party is materially prejudiced thereby. Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇known) describing the asserted Tax liability in reasonable detail and shall include copies of the relevant portion of any notice or other document received from any Tax Authority or any other Person in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and .
(ii) if Shareholders are not At OpCo’s request and expense, Buyer shall contest (or cause to be contested) any asserted Pre-Closing Tax Period Tax liability for which OpCo may have an indemnity obligation under Section 6.1(a)(i). If OpCo so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholderselects, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability OpCo shall be reduced by control the amount of such detriment.
(c) Shareholders may elect to directconduct, through counsel of their its own choosing and at their its own expense, of any audit, claim for refund and administrative or judicial proceeding Tax Proceeding involving any asserted Pre-Closing Tax Period Tax liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding the Company and/or its Subsidiaries relating to an asserted Pre-Closing Tax liability are referred Period Taxes for which OpCo is liable pursuant to herein collectively as a "Contest"Section 6.1(a)(i). If Shareholders elect ; provided that Buyer and its Affiliates shall have the right to direct the Contest of an asserted participate in such Tax liabilityProceeding, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp including through counsel of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participatechoosing, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ . OpCo shall keep Buyer fully informed on a timely basis of all matters relating to any Tax Proceeding controlled by OpCo hereunder. OpCo shall not settle accept any proposed adjustment or enter into any settlement or agreement in compromise regarding any asserted liability over Tax Proceeding controlled by OpCo without the objection consent of Shareholders. If Shareholders elect Buyer, which consent shall not be unreasonably withheld, conditioned or delayed.
(iii) In the case of a Tax Proceeding that relates to direct a Straddle Period, Buyer shall control the Contest and fail to provide conduct of such acknowledgmentTax Proceeding, then (x) Shareholders but OpCo shall have no the right to participate in such Tax Proceeding at its own expense; provided that Buyer shall not accept any proposed adjustment or enter into any settlement or agreement in compromise regarding any such Tax Proceeding without OpCo’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). Buyer shall keep OpCo fully informed on a timely basis of all matters relating to any Tax Proceeding controlled by Buyer hereunder.
(iv) Payment by OpCo of any amount due under Section 6.1(a)(i) shall be made within ten (10) days following written notice by Buyer that payment of such amounts to the Contest and appropriate Tax Authority or other applicable third party is due; provided that OpCo shall not be required to make any payment earlier than ten (y10) Bancorp days before it is due to the appropriate Tax Authority or ▇▇▇▇▇ may payapplicable third party. Payment by Buyer of any amount due under Section 6.1(a)(ii) shall be made within ten (10) days following written notice by OpCo that payment of such amounts to the appropriate Tax Authority or other applicable third party is due; provided that Buyer shall not be required to make any payment earlier than ten (10) days before it is due to the appropriate Tax Authority or applicable third party. In the case of a Tax that is contested in accordance with the provisions of this Section 6.1(d), compromise payment of such contested Tax will not be considered due earlier than the date a “final determination” to such effect is made by such Tax Authority. For this purpose, a “final determination” shall mean a settlement, compromise, or contest such asserted liability in their sole discretionother agreement with the relevant Tax Authority, a deficiency notice with respect to which the period for filing a petition with the Tax court or the relevant state, local or foreign tribunal has expired or a decision of any court of competent jurisdiction that is not subject to appeal or as to which the time for appeal has expired.
Appears in 1 contract
Sources: Equity Purchase Agreement (Health Care Reit Inc /De/)
Contests. (ai) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to A party hereto must notify the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders other party in writing within thirty (30) days or such shorter period as may be required thereby of the commencement receipt of written notice of any Tax pending or threatened tax examination, audit or other administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely that could reasonably be expected to the taxpayer or after the lapse of time would be grounds for result in an indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp other party pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
this Agreement (c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Tax Contest"). If Shareholders elect to direct the Contest recipient of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the such notice of asserted a Tax liability Contest fails to provide such notice to the other party, it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Contest to the extent, if any, that such failure or delay shall have adversely affected the indemnifying party's ability to defend against, settle, or satisfy any action, suit or proceeding against it, or any damage, loss, claim, or demand for which the indemnified party is entitled to indemnification hereunder.
(but not less than five (5ii) days before the due date of If a Tax Contest directly relates to any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp Taxes for which Sellers are liable in full therefor. Bancorp hereunder, Sellers shall cooperate at their expense control the defense and shall cause ▇▇▇▇▇ to cooperate in each phase settlement of such Tax Contest. If Shareholders choose such Tax Contest directly relates to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability any Taxes for which Shareholders would be Purchaser is liable under Section 8.01(a)in full hereunder, Purchaser shall at its own expense control the defense and settlement of such Tax Contest.
(diii) If Shareholders elect not Notwithstanding any other provision of this Agreement to direct the contrary, if a Tax Contest results in an increase in income Taxes for which Sellers are liable hereunder (excluding any income Taxes imposed upon Sellers or Sellers' member and acknowledge shareholder upon the sale of the Shares under this Agreement) and such increase is attributable to adjustments based on timing differences which will result in writingbenefits in taxable periods ending subsequent to the Closing Date, Purchaser shall pay to Sellers, upon Sellers' written request, an amount equal to the present value of the reduction in form income Taxes payable by the Purchaser in future taxable periods by reason of such reversal, determined by using a discount rate of 5.0% and substance satisfactory to Bancorp, their obligation to indemnify Bancorp an assumed tax rate of 40.0% and by assuming that such reduction in full therefor, then (i) Shareholders may participate, at their own expense, income Taxes will occur in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle year or compromise any asserted liability over the objection years of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionanticipated reversal.
Appears in 1 contract
Contests. (ai) Shareholders will allow ▇▇▇▇▇ Each Member's Stockholder (in the case of PCS, IPLLC, and in the case of Kerman, KCI) and their duly appointed representatives (collectively, the "MEMBER REPRESENTATIVE") shall have the authority to control any audit or examination by any taxing authority, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any liability of a Member for its Member Pre-Closing Periods; PROVIDED, HOWEVER, that no Member Representative shall, without the prior consent of UbiquiTel Parent, which consent shall not be unreasonably withheld, enter into any settlement of any contest or otherwise compromise any issue that would have a material adverse effect on the Tax benefits of UbiquiTel Parent or the Member for taxable years ending after the Closing Date. UbiquiTel Parent and its counsel duly appointed Representatives shall have the exclusive authority to participate at its own expense in control any audits audit or examination by any taxing authority, initiate any claim for refund, amend any Tax Return and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any liability of a consolidated, combined Member for Taxes for any taxable year or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ other taxable period ending after the Closing Date (a "MEMBER POST-CLOSING PERIOD"); PROVIDED, HOWEVER, that (a) neither UbiquiTel Parent nor its subsidiaries nor any of their duly appointed Representatives shall, without the prior written consent of the Member Representative, enter into any settlement of any contest or otherwise compromise any issue that adversely affects the liability of the Member's Stockholder or Stockholders for any Member Pre-Closing Period Taxes, and (b) neither UbiquiTel Parent nor its subsidiaries nor any of their duly appointed representatives shall, without the prior consent of the Member Representative, enter into any settlement of any contest or otherwise compromise any issue that would require payment by such Member Representative's Stockholder Group Indemnitors of any amount under this Agreement unless UbiquiTel Parent shall have waived or caused to be waived for itself and its subsidiaries any right to indemnification for Taxes from such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing DateMember Representative's Stockholder Group Indemnitors.
(bii) After UbiquiTel Parent agrees to notify in writing the ClosingMember Representative of any affected Member within ten business days of receipt of any notice, Bancorp whether oral or in writing, of any federal, state, local or foreign Tax examinations, claims, settlements, proposed adjustments, or related matters that may affect in any way such Member Representative's Stockholder Group Indemnitors' obligations under this Agreement and shall promptly notify Shareholders in writing of the commencement of forward all written notifications and other communications from any Tax authority received by UbiquiTel relating to any Tax audit or administrative or judicial other proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely relating to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to a Member. The failure of UbiquiTel Parent to give the Member Representative such written notice shall not excuse such Member Representative's Stockholder Group Indemnitors from their obligations under this Agreement with respect to any increased Tax liability shall be reduced by directly or indirectly attributable to any such written notification or other communication, unless such failure materially prejudices the amount ability of the Member Representative's Stockholder Group to defend or dispute such detrimentexamination, claim, settlement, adjustment or related matter.
(ciii) Shareholders may elect This Section 11.6(e) shall be subject to direct, through counsel the provisions of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest Article 12 of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)this Agreement.
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ Each of Purchaser, the Company and its counsel the Included Subsidiaries, on the one hand, and Seller, on the other hand, (the "Recipient") shall notify the chief tax officer of the other party in writing within 15 days of receipt by the Recipient of written notice of any pending or threatened audit, deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim ("Tax Claim") that could affect the liability for Taxes of such other party, and such notice shall provide the details of such Tax Claim. If the Recipient fails to participate at its own expense give such prompt notice to the other party, the Recipient shall not be entitled to indemnification for any Taxes arising in any audits of a consolidated, combined or unitary connection with such Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member Claim if and to the extent that such Returns relate failure to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would give notice materially and adversely affect ▇▇▇▇▇ after affects the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Dateother party.
(b) After Seller shall have the Closingsole right to represent and control the Acquired Companies' interests in any Tax Claim relating to taxable periods ending on or before the Closing Date and to employ counsel of its choice at its expense; PROVIDED, Bancorp HOWEVER, that Seller shall promptly notify Shareholders have no right to represent the Acquired Companies' interest in any such Tax Claim unless Seller shall have first notified Purchaser in writing of Seller's intention to do so within twenty (20) days of notification of the commencement Tax Claim by Purchaser. Purchaser may participate in such Tax Claim at its own expense. In the case of a Split Tax Period, Seller shall be entitled to participate at its expense in any Tax Claim relating in any part to Taxes attributable to the Pre-Closing Period and, with the prior written consent of Purchaser, at Seller's sole expense, may assume the control of such entire Tax Claim. None of Purchaser, any of its Affiliates, or any Acquired Company may settle or otherwise dispose of any Tax audit Claim for which Seller may have a liability under this Agreement, or administrative or judicial proceeding or which may result in an increase in Seller's liability under this Agreement, without the prior written consent of any demand or claim on Bancorp or ▇▇▇▇▇ whichSeller, if determined adversely to which consent may not be unreasonably withheld, unless Purchaser and the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability Acquired Companies fully indemnify Seller in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) writing with respect to such liability shall in a manner satisfactory to Seller. Neither Seller nor any of its affiliates may settle or otherwise dispose of any Tax Claim for which Purchaser or the Acquired Companies may have a liability under this Agreement, or which may result in an increase in Purchaser's or the Acquired Companies' liability under this Agreement, without the prior written consent of Purchaser, which consent may not be reduced by unreasonably withheld, unless Seller fully indemnifies Purchaser and the amount of Acquired Companies in writing with respect to such detrimentliability in a manner satisfactory to Purchaser.
(c) Shareholders Seller shall use its reasonable best efforts to minimize any interest, penalties, and other additions to Taxes that may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability be payable with respect to any Tax Claim for which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of Seller has the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate right to represent Bancorp or ▇▇▇▇▇ in and control the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)Acquired Companies' interests.
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in In the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement of any Tax an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date or for which the Purchaser may seek indemnity from the Sellers, the Sellers shall have the right, at their expense, to participate in and control the conduct of any demand such audit or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (proceeding but only to the extent known that such audit or proceeding relates to Bancorp or ▇▇▇▇▇) describing a potential adjustment for which the asserted Tax Sellers have acknowledged the Sellers' liability in reasonable detail and the issue underlying the potential adjustment does not recur for any period ending subsequent to the Closing Date. The Sellers shall include copies keep the Purchaser fully informed of any notice or other document received from any Tax Authority in respect the progress of any such asserted Tax liabilityaudit or proceeding and, if it appears in the sole discretion of the Purchaser, that such audit or proceeding may reasonably be expected to adversely affect the Purchaser or the Company, the Purchaser also may participate in any such audit or proceeding. If Bancorp fails the Sellers do not assume the defense of any such audit or proceeding promptly, the Purchaser may defend and settle the same (for the Sellers' account and at the Sellers' expense) in such manner as it may deem appropriate. In the event that a potential adjustment as to give Shareholders prompt notice which the Sellers would be liable is present in the same proceeding as a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or proceeding with respect to the latter potential adjustment.
(b) With respect to a potential adjustment for which both the Sellers and the Purchaser or the Company could be liable, or which involves an issue that recurs for any period ending after the Closing Date (whether or not the subject of an asserted Tax liability as required by this Section 8.05(baudit at such time), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative Purchaser and judicial forumsthe Sellers may participate in the audit or proceeding, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liabilityeach at its own expense, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the dollar amount of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in a detriment to Shareholdersthe preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, then any amount choice of judicial forum) in circumstances in which Shareholders separate issues are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced controlled hereunder by the amount of such detrimentPurchaser and the Sellers.
(c) Shareholders may elect Except as provided in Section 8.4(a) above, neither the Purchaser nor the Sellers shall enter into any compromise or agree to direct, through counsel of their own choosing and at their own expense, settle any audit, claim for refund and administrative or judicial proceeding involving pursuant to any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund Tax audit or proceeding relating which would adversely affect the other party, or result in a material benefit to an asserted Tax liability are referred to herein collectively as that party, for such year or a "Contest"). If Shareholders elect to direct subsequent year without the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt written consent of the notice of asserted Tax liability (but other party, which consent may not less than five (5) days before the due date of any protest be unreasonably withheld or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)delayed.
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders Zhone and CAG, on the one hand, and Principal Shareholder on the other hand, shall give notice to the other party of any pending or threatened audits, adjustments or assessments ("Tax Audit") which may affect the liability for Taxes of such other party.
(i) If such Tax Audit relates to any taxable period ending on or before the Closing Date or to or to any Taxes for which the Principal Shareholder is liable in full hereunder, the Principal Shareholder shall at its expense control the defense and settlement of such Tax Audit. If such Tax Audit relates to any taxable period beginning after the Closing Date or to any Taxes for which Zhone is liable in full hereunder, Zhone shall at its expense control the defense and settlement of such Tax Audit. If such Tax Audit relates to Taxes for which both the Principal Shareholder and Zhone are liable hereunder, to the extent possible such Taxes will allow ▇▇▇▇▇ be distinguished and its counsel each party will control the defense and settlement of those Taxes for which it is so liable.
(ii) If such Tax Audit relates to a taxable period, or portion thereof beginning before and ending after the Closing Date and any tax item cannot be identified as being a liability of only one party or cannot be separated from a tax item for which the other party is liable, the party which has the greater potential liability for those tax items that cannot be so attributed or separated (or both) shall control the defense and settlement of the Tax Audit, provided that such party defends the items as reported on the Tax Return. Any party whose liability for Taxes may be directly affected by a Tax Audit shall be entitled to participate at its own expense in any audits such defense and to employ counsel of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail its choice at its expense and shall include copies have the right to approve any settlement or compromise of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders which approval shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detrimentunreasonably withheld.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Zhone Technologies Inc)
Contests. (ai) Shareholders will allow ▇▇▇▇▇ Seller and Buyer shall notify the other Party in writing within fourteen (14) days or such shorter period as may be required thereby of receipt by it or any of its counsel Affiliates of written notice of any pending or threatened Tax examination, audit or other administrative or judicial proceeding (a “Tax Contest”) that could reasonably be expected to participate result in an indemnification obligation of such other Party pursuant to this Agreement and such timely notice shall specify in reasonable detail the basis for any claim included therein and shall include a copy of the relevant portion of any correspondence received from the taxing authority. If the recipient of such notice of a Tax Contest fails to provide such timely notice to such other Party, it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Contest, but only to the extent, if any, that such failure or delay shall have adversely affected the indemnifying Party’s ability to defend against, settle, or satisfy any action, suit or proceeding against it, or any damage, loss, claim, or demand for which the indemnified Party is entitled to indemnification hereunder, and the indemnifying Party’s indemnity obligations shall be reduced to the extent of any Tax or other liability incurred as a result of the delay or failure to receive such timely notice.
(ii) If a Tax Contest relates to any Taxes for which Seller is liable in full hereunder, Seller shall at its expense control the defense and settlement of such Tax Contest. If such Tax Contest relates to any Taxes for which Buyer is liable in full hereunder, Buyer shall at its own expense control the defense and settlement of such Tax Contest. The Party not in control of the defense shall have the right to observe the conduct of any Tax Contest at its expense, including through its own counsel and other professional experts. Buyer and Seller shall jointly represent CEM, CPI, any Investor Subsidiary, any Service Subsidiary or any Project Company in any audits of a consolidatedTax Contest relating to Taxes for which both are liable hereunder, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member and fees and expenses related to such representation shall be paid equally by Buyer and Seller.
(iii) Notwithstanding anything to the contrary in Section 6.9(d)(ii), to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle an issue raised in any such audit in a manner which would adversely Tax Contest controlled by one Party or jointly controlled could materially affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable liability for Taxes of the other Party, the controlling Party shall not, and neither Party in the case of joint control shall, enter into a Person final settlement without the consent of the other Party, which consent shall not be unreasonably withheld. Where a Party reasonably withholds its consent to any final settlement, that owned ▇▇▇▇▇ both before Party may continue or initiate further proceedings, at its own expense, and after the liability of the Party that wished to settle (as between the consenting and the non-consenting Party) shall not exceed the liability that would have resulted from the proposed final settlement including interest, additions to Tax, and penalties that have accrued at that time, and the non-consenting Party shall indemnify the consenting Party for any liability in excess of liability that would have resulted from the proposed final settlement.
(iv) Notwithstanding any other provision of this Agreement to the contrary, if a Tax Contest results in an increase in Income Taxes for which Seller is liable hereunder and such increase is attributable to adjustments based on timing differences which will reverse in Tax periods ending subsequent to the Closing Date.
(b) After the Closing, Bancorp Buyer shall promptly notify Shareholders in writing pay to Seller, upon Seller's written request, an amount equal to the present value of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability reduction in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded Income Taxes payable by the failure to give prompt notice from contesting the asserted Buyer and its Affiliates in future Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out periods by reason of such asserted reversal, determined by using a discount rate of 6% and an assumed Tax liabilityrate of 40%, and (ii) if Shareholders are not so precluded from contesting but by assuming that such failure to give prompt notice results reduction in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ Income Taxes will occur in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)year or years of reversal.
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mdu Resources Group Inc)
Contests. (a) Shareholders will allow ▇▇▇▇▇ Whenever any Taxing Authority asserts a claim, makes an assessment, or otherwise disputes the amount of Taxes for which Sellers are liable under this Agreement, Purchasers shall upon receipt of such assertion, promptly inform Sellers in writing and its counsel Sellers shall have the sole right to participate at its own expense in control any audits of a consolidatedresulting proceedings and to determine whether and when to settle any such claim, combined assessment or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member dispute to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will proceedings or determinations affect the amount of Taxes for which Sellers may be liable under this Agreement; provided, however, that, without the written consent of Purchasers, which shall not be unreasonably withheld, Sellers shall not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless claim, assessment or dispute if such settlement would reasonably be reasonable expected to adversely affect the Tax liability of Purchasers under this Agreement or the Tax liabilities of the Spine Entities for which Sellers are not obligated to indemnify Purchasers. Whenever any Taxing Authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which Purchasers are liable under this Agreement, Purchasers shall have the right to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or dispute, except to the extent such proceedings affect the amount of Taxes for which Sellers are liable under this Agreement. Whenever any Taxing Authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which both Sellers and Purchasers may be liable: (a) each party may participate in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
any resulting proceedings; (b) After that portion of the Closing, Bancorp proceedings shall be controlled by that party that would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future taxable periods; and (c) Purchasers shall be entitled to take all such action that they deem necessary or appropriate to protect their confidential information. Sellers shall promptly notify Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies inform Purchasers of any notice or other document received claim they receive from any Tax Taxing Authority in respect that relates to Taxes for which any of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity Spine Entities may be sought under Section 8.01(a) (any liable and provide Purchasers with a copy of all such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so claims and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)notices.
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel Seller shall have the right to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to control the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement conduct of any Tax audit or administrative or judicial proceeding with respect to any consolidated federal income Tax Return (or similar combined, consolidated or unitary state income Tax Return) that includes Seller or the Companies with respect to a taxable period of the Companies ending on or before the Closing Date (a “Pre-Closing Consolidated Audit”).
(b) With respect to any audit or administrative or judicial proceeding with respect to Taxes of the Companies (other than a Pre-Closing Consolidated Audit), Purchaser shall promptly notify Seller in writing upon receipt by any of the Companies of a written notice of any demand audit or claim on Bancorp administrative or ▇▇▇▇▇ whichjudicial proceeding with respect to Taxes of any of the Companies which Seller may have liability (a “Tax Contest Claim”); provided, if determined adversely however, no failure or delay by Purchaser to provide notice of a Tax Contest Claim shall reduce or otherwise affect the taxpayer or after the lapse obligation of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (Seller hereunder except to the extent known to Bancorp or ▇▇▇▇▇) describing Seller is actually prejudiced thereby. Purchaser and Seller shall cooperate with each other in the asserted Tax liability in reasonable detail and shall include copies conduct of any notice or other document received from Tax Contest Claim. Seller shall have the right to control the conduct of any Tax Authority in respect of any such asserted Contest Claim for a period that ends on or prior to the Closing Date (a “Pre-Closing Tax liability. If Bancorp fails to give Shareholders prompt Claim”) if Seller provides Purchaser with notice of its election to control such claim within thirty (30) days of Purchaser notifying Seller of such Tax Contest Claim, provided if the resolution of such Pre-Closing Tax Claim could reasonably be expected to have an asserted Tax liability as required by this Section 8.05(b), then adverse effect on Purchaser or any of the Companies for a period that ends after the Closing Date then: (i) if Shareholders are precluded by Seller shall keep Purchaser informed regarding the failure to give prompt notice from contesting the asserted Tax liability in both the administrative progress and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out substantive aspects of such asserted Pre-Closing Tax liabilityClaim, and (ii) if Shareholders are Purchaser shall be entitled to participate in any Pre-Closing Tax Claim and (iii) Seller shall not so precluded from contesting but such failure compromise or settle any Pre-Closing Tax Claim without obtaining Purchaser’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. If Seller does not elect to give prompt notice results in control a detriment to ShareholdersPre-Closing Tax Claim within the time period set forth above, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability Purchaser shall be reduced by the amount entitled to control all aspects of such detrimentclaim.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with With respect to which indemnity may be sought under Section 8.01(a) any Tax Contest Claim for a period that begins before and ends after the Closing Date (any such audit, claim for refund or proceeding relating to an asserted a “Straddle Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereofClaim”), notify Bancorp of their intent to do so Purchaser shall control such claim, provided that (A) Purchaser shall keep Seller informed regarding the progress and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase substantive aspects of such Contest. If Shareholders choose to direct the ContestStraddle Tax Claim, Bancorp (B) Seller shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right entitled to participate in the Contest any Straddle Tax Claim and (yC) Bancorp or ▇▇▇▇▇ may pay, Purchaser shall not compromise or contest such asserted liability in their sole discretionsettle a Straddle Tax Claim without obtaining Seller’s consent, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ Whenever any taxing authority asserts a claim, makes an assessment or otherwise disputes or affects the Tax reporting position of the Company for periods ending prior to the Closing Date, the Company shall, promptly upon receipt by Purchaser or the Company of notice thereof, inform the Stockholders, and its counsel the Stockholders shall have the right, at their expense, to participate at its own expense in control any audits of a consolidatedresulting proceedings and to determine whether and when to settle any such claim, combined assessment or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member dispute, to the extent such proceedings affect the amount of Taxes with respect to which the Company and Purchaser are entitled to indemnification pursuant to Section 9.1, provided that such Returns relate the Stockholders shall not be entitled to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which claim for Taxes that would have the consequence of adversely affect ▇▇▇▇▇ affecting the liability for Taxes of the Company or its Subsidiaries for any period after the Closing Date unless to any extent (including, but not limited to, the imposition of income tax deficiencies, reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods or the denial of amortization or depreciation deductions) without the prior written consent of Purchaser. Such consent shall not be unreasonably withheld and shall not be necessary to the extent the Stockholders have indemnified Purchaser and the Company against the effects of any such settlement settlement. Purchaser, the Company and their representatives may also participate in any such proceedings at their own expense. Whenever any taxing authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes with respect to which the Company and Purchaser are not entitled to indemnification pursuant to Section 9.1 because such Taxes are not covered by the indemnification provisions set forth in this Agreement, the Stockholders shall, promptly upon receiving notice thereof, inform Purchaser. The Company shall have the right to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or dispute, but only to the extent such proceedings affect the amount of Taxes for which the Company is not entitled to indemnification pursuant to Section 9.1. The Stockholders and their representatives may also participate in any such proceedings at their own expense. Purchaser shall not (and shall cause the Company not to) file or amend any Tax Return with respect to periods ending on or prior to the Closing Date. Notwithstanding anything set forth herein, if a taxing authority requests an extension of the statute of limitations for assessment and the Stockholders control such proceeding, the extension shall not be granted if the statute of limitations would be reasonable in the case of extended to a Person that owned ▇▇▇▇▇ both before and date after five years following the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Sources: Recapitalization and Stock Purchase Agreement (American Axle & Manufacturing Holdings Inc)
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp the Purchaser shall promptly notify Shareholders the Sellers in writing of the commencement any written notice of any Tax a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or any of any demand or claim on Bancorp or ▇▇▇▇▇ the Companies which, if determined adversely to the taxpayer or after the lapse of time taxpayer, would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b)Article VI; provided, then (i) if Shareholders are precluded by however, that the failure to give prompt such notice from contesting will not affect the asserted Purchaser’s right to indemnification under this Article VI except to the extent, if any, that, but for such failure, the Sellers could have avoided all or a portion of the Tax liability in both question.
(b) In the case of an audit or administrative or judicial proceeding that relates to taxable periods ending on or before the date of Closing, provided that, and judicial forumsonly to the extent that, then Shareholders shall not have the Sellers acknowledges in writing their liability under this Agreement to hold the Purchaser, the Companies and their Affiliates harmless against the full amount of any obligation to indemnify for any loss arising out adjustment which may be made as a result of such asserted Tax liabilityaudit or proceeding, the Sellers shall have the right at their expense to participate in and (ii) control the conduct of such audit or proceeding; the Purchaser also may participate in any such audit or proceeding and, if Shareholders the Sellers do not assume the defense of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including settling such audit or proceeding after five days prior written notice to the Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Sellers have acknowledged its liability are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant be contested in the same audit or proceeding as separate issues relating to Section 8.01(a) a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or proceeding with respect to such liability shall be reduced by the amount of such detrimentlatter issues.
(c) Shareholders With respect to issues relating to a potential adjustment for a Straddle Period the Sellers may elect to direct, through counsel of their own choosing and participate in the audit or proceeding at their own expense, provided that, and only to the extent that, the Sellers acknowledges in writing their liability under this Agreement to hold the Purchaser, the Companies and their Affiliates harmless against the amount of any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to adjustment which indemnity may be sought under Section 8.01(a) (any made as a result of such audit, claim for refund audit or proceeding relating and that is allocable, pursuant to an asserted Tax liability are referred Section 6.01(b) to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt portion of the notice of asserted Tax liability (but not less than five (5) days before Straddle Period ending on the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)Closing.
(d) If Shareholders elect With respect to any Tax audit or proceeding for a taxable period that begins before the date of the Closing, neither the Purchaser nor the Sellers shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. The Purchaser and the Sellers agree to direct cooperate, and the Contest and acknowledge in writing, in form and substance satisfactory Purchaser agrees to Bancorp, their obligation cause the Companies to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expensecooperate, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle defense against or compromise of any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide claim in any such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp audit or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionproceeding.
Appears in 1 contract
Contests. (ai) Shareholders Buyer will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly immediately notify Shareholders Sellers in writing of any proposed assessment or claim or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ Proceeding which, if determined adversely adversely, could result in a liability to Sellers under this Agreement or which could cause an adjustment in the Tax liability of Sellers or their Affiliates. Sellers will immediately notify Buyer in writing of any proposed assessment or claim or the commencement of any Tax Proceeding which, if determined adversely, could affect the determination of Taxes to which the Company may be subject in or for Post-Closing Tax Periods, but only to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a)extent that Sellers are notified thereof. Such In each case, such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) known, describing the asserted Tax liability in reasonable detail detail, and shall include copies of any notice or other document received from any Tax Authority authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and .
(ii) if Shareholders are not so precluded from contesting but such failure In the case of a Tax Proceeding that relates to give prompt notice results in a detriment to Shareholdersany Pre-Closing Tax Period, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by Sellers will have the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and right at their own expense, any audit, claim for refund and administrative expense to control the conduct of such Tax Proceeding including settling or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any compromising the issue or matter except if such audit, claim for refund settlement or proceeding relating to an asserted compromise affects the Tax liability are referred to herein collectively as a "Contest")of the Company for any Post-Closing Tax Period, in which case no settlement or compromise shall be made without the consent of Buyer, which shall not be unreasonably withheld. If Shareholders Sellers elect to direct the Contest of an asserted such Tax liabilityProceeding, they Sellers shall, within thirty (30) calendar 30 days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date its becoming aware of any protest or other claim in respect thereof)Tax Proceeding, notify Bancorp Buyer of their Sellers' intent to do so so, and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp Buyer shall cooperate and shall cause ▇▇▇▇▇ the Company to cooperate fully cooperate, at Sellers' expense, in each phase of such Contestthe Tax Proceeding. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders Sellers elect not to direct such Tax Proceeding, Buyer or the Contest and acknowledge in writingCompany, as applicable, may assume control of such Tax Proceeding (at Buyer's expense); provided, however, in form such case, Buyer shall provide Sellers with a timely and substance satisfactory to Bancorpreasonably detailed account of each phase of the Tax Proceeding, their obligation to indemnify Bancorp in full thereforand neither Buyer nor the Company may settle or compromise any asserted liability without the prior written consent of Sellers, then (i) Shareholders which shall not be unreasonably withheld. In any event, Sellers may participate, at their own expense, in any Tax Proceeding related to any Pre-Closing Tax Period, and Buyer may participate, at its own expense, in any Tax Proceeding related to any Taxes which could affect the Contest determination of Taxes to which the Company may be subject in or for any Post-Closing Tax Period.
(iii) In the case of any Tax Proceeding that relates to any Tax for any Straddle Period, Sellers may elect to direct and (ii) neither Bancorp nor ▇▇▇▇▇ control, through counsel of their own choosing, such audit or Proceeding, except that Sellers may not settle or compromise the issue or matter if such settlement or compromise affects the Tax liability of the Straddle Period allocated to the Company under Section 6.04(d), without the consent of Buyer, which shall not be unreasonably withheld. If Sellers elect to direct such Tax Proceeding, Sellers shall, within 30 days of their becoming aware of any such Tax Proceeding, notify Buyer of Sellers' intent to do so, and Buyer shall cooperate and shall cause the Company to fully cooperate, at Sellers' expense, in each phase of the Tax Proceeding. If Sellers elect not to direct such Tax Proceeding, Buyer or the Company, as applicable, may assume control of such Tax Proceeding (at Buyer's expense); provided, however, in such case, Buyer shall provide Sellers with a timely and reasonably detailed account of each phase of the Tax Proceeding, and neither Buyer nor the Company may settle or compromise any asserted liability over without the objection prior written consent of ShareholdersSellers, which shall not be unreasonably withheld. If Shareholders elect not In any event, Sellers may participate, at their own expense, in any Tax Proceeding related to direct a Straddle Period. Except as provided otherwise in this Section 6.04(g), Buyer will control, at its own expense, any and all Tax Proceedings of the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionCompany.
Appears in 1 contract
Sources: Stock Purchase Agreement (Watts Water Technologies Inc)
Contests. Buyer agrees to give prompt notice to Seller of any proposed adjustment to Taxes payable by Symphony or any of its Subsidiaries (aother than income Taxes includible in a consolidated or combined Tax Return of Seller) Shareholders will allow ▇▇▇▇▇ for periods ending on or prior to the Closing Date (other than income Taxes includable on a consolidated or combined Tax Return of Seller) or any Pre-Closing Partial Period. Seller shall give Buyer prompt notice of any proposed adjustments in income Taxes of Symphony includable on a consolidated or combined Tax Return of Seller. Buyer and Seller shall cooperate with each other in the conduct of any audit or other proceeding involving Symphony or and of its counsel to Subsidiaries for such periods and each party may participate at its own expense in any audits expense. Seller shall have the right to control the conduct of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit or proceeding for which Seller agrees in a manner which would adversely affect ▇▇▇▇▇ after writing that any resulting Tax allocable to any period prior to and including the Closing Date unless is covered by the indemnity set forth in Section 10.1 of this Agreement, (such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichproceeding, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(ba "Sellers' Contest"), then provided that: (i) if Shareholders are precluded by Seller shall keep Buyer informed regarding the failure to give prompt notice from contesting the asserted Tax liability in both the administrative progress and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date substantive aspects of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Sellers' Contest and (ii) neither Bancorp nor ▇▇▇▇▇ Seller shall not compromise or settle any Sellers' Contest if such compromise or compromise any asserted liability over settlement would have the objection effect of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and increasing any Tax liability of Symphony or any of its Subsidiaries or (y) Bancorp otherwise materially and adversely affect any item or ▇▇▇▇▇ may payTax attribute of Symphony or any of its Subsidiaries, compromise or contest in each case for any taxable period ending after the Closing Date, without obtaining Buyer's consent, which consent shall not be unreasonably withheld. If Seller chooses to direct a Sellers' Contest, Buyer shall cause powers of attorney authorizing Seller's designee to represent Symphony and its Subsidiaries before the relevant taxing authority and such asserted liability in their sole discretionother documents as are reasonably necessary for Seller to control the conduct of any Sellers' Contest, consistent with the terms of this Section 10.5.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Leucadia National Corp)
Contests. (ai) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after After the Closing Date.
(b) After , Buyer and Seller shall each notify the Closing, Bancorp shall promptly notify Shareholders other in writing within ten (10) days of the commencement of any Tax audit or administrative or judicial proceeding affecting the Taxes or Tax attributes of the Company or any demand of its Subsidiaries; provided, however, that Buyer shall only have the obligation to notify Seller if the audit or claim on Bancorp administrative or ▇▇▇▇▇ whichjudicial proceeding would, if determined adversely to the taxpayer taxpayer, or after the lapse of time would time, be grounds for indemnification under this Section 8.01(a)10.01 or under Article VIII with respect to Taxes by Seller. Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the any asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp either Buyer or Seller fails to give Shareholders the other party prompt notice of an asserted Tax liability as required by under this Section 8.05(b)Agreement, then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders such notification shall not affect the indemnification provided hereunder except to the extent the other party shall have any obligation to indemnify for any loss arising out been actually prejudiced as a result of such asserted Tax liability, and failure or the indemnification obligations are increased as a result of such failure.
(ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by In the amount case of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and an audit or administrative or judicial proceeding involving any asserted liability with respect Taxes or Tax attributes relating to which indemnity any taxable years or periods ending on or before the Closing Date or any Straddle Period of the Company or any of its Subsidiaries, Seller shall have the right, at its expense, to control the conduct of such audit or proceeding; provided, however, that Buyer may be sought under Section 8.01(a) (participate in the conduct of such audit or proceeding at its own expense and Seller shall not settle any such audit, claim for refund audit or proceeding without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed.
(iii) In the case of an audit or administrative or judicial proceeding involving any Taxes or Tax attributes relating to an asserted any taxable years or periods beginning after the Closing Date of the Company or any of its Subsidiaries, Buyer shall have the right, at its expense, to control the conduct of such audit or proceeding; provided, however, that if such audit or proceeding would be reasonably expected to result in a material increase in Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt any of the notice of asserted Tax liability (but not less than five (5) days before the due date of Company or any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability its Subsidiaries for which Shareholders Seller would be liable under Section 8.01(a).
(d10.01(a) If Shareholders elect not to direct the Contest and acknowledge in writingor under Article VIII, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders Seller may participate, at their own expense, participate in the Contest conduct of such audit or proceeding at its own expense and (ii) neither Bancorp nor ▇▇▇▇▇ Buyer shall not settle any such audit or compromise any asserted liability over proceeding without the objection consent of Shareholders. If Shareholders elect Seller, which consent shall not to direct the Contest and fail to provide such acknowledgmentbe unreasonably withheld, then (x) Shareholders shall have no conditioned or delayed; provided, further, that Seller’s right to participate in participation and consent shall be limited to matters or issues involving the Contest Company and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionits Subsidiaries.
Appears in 1 contract
Contests. Purchaser shall inform Seller of the commencement of any audit, examination or proceeding (a“Tax Contest”) Shareholders will allow ▇▇▇▇▇ relating in whole or in part to Taxes for which Seller is responsible hereunder within ten (10) days of its receipt of any notice of deficiency, proposed adjustment, assessment, audit, examination or other administrative or court proceeding, suit, dispute, or other claim in which a Taxing Authority makes or proposes to make a Tax adjustment that could result in an indemnity payment pursuant to Article VII or Section 9.03 hereof. Seller, at its option and its counsel to participate at its own expense expense, shall control all proceedings and other Actions taken in connection with such Tax Contest except for (i) any audits of Tax Contest involving a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both period beginning before and ending after the Closing Date.
, or (bii) After any Tax Contest that could reasonably be expected to affect the ClosingTax liability of Purchaser or any of the Companies by greater than for any Post Closing Period, Bancorp in which case Seller and Purchaser shall promptly notify Shareholders in writing jointly control all proceedings with respect to any such Tax Contest at their own cost and expense. Notwithstanding the foregoing, if notice is given to Seller of the commencement of any Tax audit Contest and Seller does not, within fifteen (15) Business Days after Purchaser’s notice is received, give notice to Purchaser of its election to assume the defense thereof, Purchaser shall control such Tax Contest and Seller shall be bound by any determination made in such Tax Contest or administrative any compromise or judicial proceeding or settlement thereof effected by Purchaser. The failure of Purchaser to give reasonably prompt notice of any demand Tax Contest shall not release, waive or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (otherwise affect Seller’s obligations with respect thereto except to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail that Seller can demonstrate actual and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability material loss and prejudice as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out a result of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detrimentfailure.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Sources: Stock Purchase Agreement
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(bi) After the Closing, Bancorp the Buyer and the Beneficiaries (or their designee) shall promptly notify Shareholders each other in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp received by the Beneficiaries, Buyer or ▇▇▇▇▇ which, if determined adversely the Company from any Tax authority or other party with respect to Taxes for which the taxpayer or after the lapse of time would be grounds for indemnification under Beneficiaries are liable pursuant to Section 8.01(a8.5(c)(i). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇known) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and .
(ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(aThe Beneficiaries (or their designee) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to directcontrol the conduct, through counsel of their its own choosing and at their its own expense, of any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a8.5(c)(i) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are is referred to herein collectively as a "Contest"), other than any Contest relating to the Massachusetts Big S Tax. If Shareholders the Beneficiaries (or their designee) elect to direct the Contest of an asserted Tax liabilitycontrol such a Contest, they shall, shall within thirty (30) 20 calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before notify the due date of any protest or other claim in respect thereof), notify Bancorp Buyer of their intent to do so so, and acknowledge in writingthe Beneficiaries (or their designee) shall have all rights to settle, in form compromise and/or concede such asserted liability; PROVIDED, HOWEVER, that Buyer shall have the right to consult with the Beneficiaries regarding any Contest that may affect the Company for any Post-Closing Period and substance satisfactory PROVIDED FURTHER that the Beneficiaries shall not have the right to Bancorpsettle, their obligation to indemnify Bancorp in full therefor. Bancorp compromise and/or concede any such Contest that may affect the Company for any period after the Closing Date without Buyer's prior written consent, which consent shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contestnot be unreasonably withheld. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders Beneficiaries elect not to direct the control such a Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgmentnotify Buyer of their election as herein provided, then (x) Shareholders shall have no right to participate in Buyer or the Contest and (y) Bancorp or ▇▇▇▇▇ Company may pay, compromise or contest contest, at its own expense, subject to (i) reimbursement by the Beneficiaries for reasonable third party expenses and (ii) the Beneficiaries' indemnification obligations under Section 8.5(c)(i); provided, however, that (A) the Beneficiaries shall have the right to consult with Buyer regarding any Contest that may affect the Beneficiaries or the Trust for any Pre-Closing Period or with respect to which the Beneficiaries or the Trust may owe indemnification under this Agreement, and (B) Buyer shall not have the right to settle, compromise and/or concede any such asserted Contest without the Beneficiaries' prior written consent, which consent shall not be unreasonably withheld. Buyer shall have the sole right to represent the Company in any other Contest.
(iii) In the event that the Beneficiaries or any of their Affiliates shall after the Closing take any position in any Tax Return, or reach any settlement or agreement on audit, which is in any manner inconsistent with any position taken by the Beneficiaries or any of their Affiliates in any filing, settlement or agreement made by the Beneficiaries prior to the Closing and such inconsistent position (i) requires the payment by Buyer of more Tax than would have been required to be paid had such position not been taken or such settlement or agreement not been reached, (ii) affects the determination of useful life, basis or method of depreciation, amortization or accounting of any of the assets or properties of the Company or (iii) accelerates the time at which any Tax must be paid by Buyer, then the Beneficiary, in each such case, shall provide timely and reasonable notice to Buyer of such position and shall indemnify Buyer and hold it harmless from any Tax liability or Tax cost or any Loss arising from, in their sole discretionconnection with or otherwise with respect to such position.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ Purchaser and its counsel the Seller Representative agree to give prompt notice to each other of any proposed adjustment to Taxes for any periods of the Company ending prior to the Closing Date or any Pre-Closing Partial Period. Purchaser and the Seller Representative shall cooperate with each other in the conduct of any audit or other proceeding involving the Company for such periods and each party may participate at its own expense in any audits expense. Seller Representative shall have the right to control the conduct of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner or proceeding for which would adversely affect ▇▇▇▇▇ after the Sellers agree that any resulting Tax allocable to any period prior to the Closing Date unless is covered by the indemnity set forth in Section 13.8 of this Agreement, (such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichproceeding, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇a "Seller's Contest") describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then provided that: (i) if Shareholders are precluded by Seller Representative shall keep Purchaser informed regarding the failure to give prompt notice from contesting the asserted Tax liability in both the administrative progress and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date substantive aspects of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Seller's Contest and (ii) neither Bancorp nor ▇▇▇▇▇ Seller Representative shall not compromise or settle any Seller's Contest if such compromise or compromise any asserted liability over settlement would have the objection effect of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in increasing any Tax liability of the Contest and Company or (y) Bancorp otherwise materially and adversely affect any item or ▇▇▇▇▇ may payTax attribute of the Company, compromise or contest in each case for any taxable period ending after the Closing Date, without obtaining Purchaser's consent, which consent shall not be unreasonably withheld. If Seller Representative chooses to direct a Seller's Contest, Purchaser shall cause powers of attorney authorizing Seller Representative to represent the Company before the relevant taxing authority and such asserted liability in their sole discretion.other documents as are reasonably necessary for Seller Representative to control the conduct of any Sellers' Contest, consistent with the terms of this Section 13.5
Appears in 1 contract
Contests. (ai) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after After the Closing Date.
(b) After , the ClosingPurchaser shall, Bancorp or shall promptly cause the Purchased Subsidiary to, notify Shareholders the Sellers in writing of promptly upon the commencement of any Tax audit or administrative or judicial proceeding or the receipt by the Purchaser or the Purchased Subsidiary of any request issued by any Taxation Authority for documents in connection with Taxes which are the subject of the indemnities provided for in Section 5.11(a) (but in any event within no later than ten (10) Business Days of such receipt by the Purchaser or the Purchased Subsidiary) which, could give rise to a Sellers’ liability under Section 5.11, provided the giving of such notice will not be a condition precedent to the liability of the Sellers under this Section 5.11, and shall also separately notify the Sellers in writing of any proposed or final demand or claim on Bancorp the Purchaser or ▇▇▇▇▇ the Purchased Subsidiary which, if determined adversely to the taxpayer or after the lapse of time time, would be grounds for indemnification by the Tax Indemnifying Parties under Section 8.01(a5.11(a). Such Each such notice shall contain factual information (to the extent known to Bancorp the Purchaser or ▇▇▇▇▇the Purchased Subsidiary) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. .
(ii) If Bancorp fails the Purchaser or the Purchased Subsidiary fail to give Shareholders the Sellers prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i5.11(h)(i) and if Shareholders the Sellers are precluded by the such failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders the Sellers shall not have any obligation to indemnify for any loss or damage arising out of such asserted Tax liability, and (ii) if Shareholders the Sellers are not so precluded from contesting but such failure to give prompt notice results in a additional liabilities, expenses or other detriment to Shareholdersthe Sellers, then any amount which Shareholders the Sellers otherwise are otherwise required to pay Bancorp to the Purchaser or the Purchased Subsidiary pursuant to this Section 8.01(a) 5.11 with respect to such liability shall be reduced by the amount of such detriment; provided however, that such detriment is duly substantiated by the Sellers.
(ciii) Shareholders The Sellers may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving to the extent it involves any asserted liability with respect to which indemnity by the Sellers may be sought under this Section 8.01(a) 5.11 (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "“Contest"”). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders Sellers choose to direct the Contest, Bancorp the Purchaser or the Purchased Subsidiary, as applicable, shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-power of attorney and such other documentation as may be appropriate) such of Sellers’ representatives of Shareholders as they Sellers may designate to represent Bancorp the Purchaser or ▇▇▇▇▇ in the Contest Purchased Subsidiary insofar as the Contest involves an asserted Tax liability for which Shareholders the Sellers would be liable under this Section 8.01(a5.11.
(iv) The Sellers shall consult with respect to, and a reasonable amount of time in advance of, the settlement of any Contest controlled by the Sellers pursuant to this paragraph, and the Sellers may not settle any such Contest or transmit any material communication (whether oral, in writing or otherwise) to any Taxation Authority in connection with such Contest, or transmit any material communication (whether oral, in writing or otherwise) to any Taxation Authority in connection with such Contest, without the prior written consent of the Purchaser or the Purchased Subsidiary, as applicable (which consent shall not be unreasonably withheld or delayed).
(dv) If Shareholders the Sellers elect not to direct the Contest and acknowledge in writingContest, in form and substance satisfactory to Bancorpthe Purchaser or the Purchased Subsidiary, their obligation to indemnify Bancorp in full thereforas the case may be, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability as it sees fit, and shall be reimbursed by the Sellers for reasonable costs of outside tax advisors and related professionals and reasonable out of pocket costs (for all of which appropriate supporting documentation shall be provided) incurred in connection with a Tax liability ultimately determined to be indemnifiable by the Sellers hereunder.
(vi) The Sellers and Purchaser shall cooperate in respect of any Contest. Such cooperation and information shall include providing copies of relevant Tax Returns or portions thereof, together with accompanying schedules and related work papers and documents relating to rulings or other determinations by Taxation Authorities. The Sellers and the Purchaser will make themselves (and their sole discretionrespective employees) available, on a mutually convenient basis, to provide explanations of any documents or information provided under this Section 5.11.
Appears in 1 contract
Sources: Asset Purchase Agreement (Perry Ellis International Inc)
Contests. (a) Shareholders will allow ▇▇▇▇▇ and The Purchaser shall promptly notify the Sellers in writing upon receipt by the Purchaser or any of its counsel Affiliates of notice of any pending or threatened Tax audits, examinations or assessments which may affect any Tax liability for which the Sellers are liable or has an indemnification obligation, provided that failure to participate at its own expense in any audits of a consolidated, combined comply with this provision shall not affect the Purchaser’s right to payment or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member indemnification hereunder except to the extent that such Returns relate failure impairs the Sellers’ ability to ▇▇▇▇▇. Shareholders will not settle contest any such audit in a manner which would adversely affect ▇▇▇▇▇ after Tax liabilities. Such notice shall state the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing amount of the commencement claim, if known, and the method of computation thereof, the nature of such claim and a reference to the provision of this Agreement upon which such claim is based, all with reasonable particularity. The Sellers shall have the sole right to (i) control and conduct any such Tax audit or administrative or judicial court proceeding relating to a Pre-Closing Tax Period that has no effect on a subsequent period (and if any such Tax audit or administrative or court proceeding has an effect on a subsequent period, the Purchaser and the Sellers shall jointly control such Tax audit or administrative or court proceeding), (ii) to employ counsel of any demand or claim on Bancorp or ▇▇▇▇▇ whichits choice at its expense, if determined adversely to the taxpayer and (iii) settle, either administratively or after the lapse commencement of time would litigation, any such Tax audit or administrative or court proceeding; provided, however, that the Sellers shall not compromise or settle any such Tax audit or administrative or court proceeding if such compromise or settlement could reasonably be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (expected to increase the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability of the Purchaser or any of its Affiliates in reasonable detail and a tax period that begins after the Closing Date without obtaining the prior written consent of the Purchaser, which consent shall include copies of any notice or other document received from not be unreasonably withheld. With respect to any Tax Authority audit or similar proceeding relating to a Straddle Period, the Purchaser and the Sellers shall jointly control such audit or similar proceeding. Neither the Purchaser nor any of its Affiliates may agree to settle any tax claim which the Sellers are responsible for or which settlement could reasonably be expected to increase the Tax liability of the Sellers (or its beneficial owners) in respect of any such asserted Pre-Closing Tax liability. If Bancorp fails to give Shareholders prompt notice Period or Straddle Period without the prior written consent of an asserted Tax liability as required by this Section 8.05(b)the Sellers, then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders which consent shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detrimentunreasonably withheld.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (ai) Shareholders will allow ▇▇▇▇▇ Seller and Buyer shall notify the other Party in writing within ten (10) Business Days or such shorter period as may be required thereby of receipt by it or any of its counsel Affiliates of written notice of any pending or threatened Tax examination, audit or other administrative or judicial proceeding (a “Tax Contest”) that could reasonably be expected to participate result in an indemnification obligation of such other Party pursuant to this Agreement and such timely notice shall specify in reasonable detail the basis for any claim included therein and shall include a copy of the relevant portion of any correspondence received from the taxing authority. If the recipient of such notice of a Tax Contest fails to provide such timely notice to such other Party, it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Contest, but only to the extent, if any, that such failure or delay shall have adversely affected the indemnifying Party’s ability to defend against, settle, or satisfy any action, suit or proceeding against it, or any damage, loss, claim, or demand for which the indemnified Party is entitled to indemnification hereunder, and the indemnifying Party’s indemnity obligations shall be reduced to the extent of any Tax or other liability incurred as a result of the delay or failure to receive such timely notice.
(ii) If a Tax Contest relates to any Taxes for which Seller is liable in full hereunder, Seller shall at its expense control the defense and settlement of such Tax Contest. If such Tax Contest relates to any Taxes for which Buyer is liable in full hereunder, Buyer shall at its own expense control the defense and settlement of such Tax Contest. The Party not in control of the defense shall have the right to observe the conduct of any Tax Contest at its expense, including through its own counsel and other professional experts. Buyer and Seller shall jointly represent the Target Entities in any audits of a consolidatedTax Contest relating to Taxes for which both are liable hereunder, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member and fees and expenses related to such representation shall be paid equally by Buyer and Seller.
(iii) Notwithstanding anything to the contrary in Section 6.9(c)(ii), to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle an issue raised in any such audit in a manner which would adversely Tax Contest controlled by one Party or jointly controlled could materially affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable liability for Taxes of the other Party, the controlling Party shall not, and neither Party in the case of joint control shall, enter into a Person that owned ▇▇▇▇▇ both before and after final settlement without the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing consent of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichother Party, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders which consent shall not have be unreasonably withheld. Where a Party reasonably withholds its consent to any obligation to indemnify for any loss arising out of such asserted Tax liabilityfinal settlement, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholdersthat Party may continue or initiate further proceedings, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their its own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted the liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability Party that wished to settle (but not less than five (5as between the consenting and the non-consenting Party) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise exceed the liability that would have resulted from the proposed final settlement including interest, additions to Tax, and penalties that have accrued at that time, and the non-consenting Party shall indemnify the consenting Party for any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionexcess of liability that would have resulted from the proposed final settlement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Black Hills Corp /Sd/)
Contests. (a1) Shareholders will allow ▇▇▇▇▇ and its counsel If a written claim is made against Lessor or if any proceeding is commenced against Lessor (including a written notice of such proceeding) for Taxes as to participate at its own expense in any audits of a consolidatedwhich Lessee could be liable for payment or indemnity hereunder, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp Lessor shall promptly notify Shareholders give Lessee notice in writing of such claim (PROVIDED, HOWEVER, that the commencement failure to provide such notice shall not affect Lessee's obligations hereunder to the Lessor unless such failure shall effectively preclude Lessee's right to contest such claim) and shall not take any action with respect to such claim or Tax without the consent of any Tax audit or administrative or judicial proceeding or Lessee for thirty (30) days following the receipt of any demand or claim on Bancorp or ▇▇▇▇▇ whichsuch notice by Lessee; PROVIDED, HOWEVER, that, if determined adversely Lessor shall be required by Law to take action prior to the taxpayer or after end of such 30-day period, Lessor shall, in such notice to Lessee, so inform Lessee, and Lessor shall take no action without the lapse consent of time would Lessee for as long as it is legally able to do so (it being understood that Lessor shall be grounds entitled to pay the Tax claimed and sue for indemnification under Section 8.01(a). Such notice shall contain factual information (a refund prior to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies end of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then 30-day period if (i) if Shareholders are precluded (A) ▇he failure to so pay the Tax would result in penalties (unless immediately reimbursed by Lessee) or (B) the failure to give prompt notice from contesting the asserted Tax liability so pay would result in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, criminal penalties and (ii) if Shareholders are not Lessor uses its good faith efforts to take any action so precluded from contesting but such failure to give prompt notice results required in connection with so paying the Tax in a detriment manner that is the least prejudicial to Shareholdersthe pursuit of the contest). In addition, then Lessor shall (PROVIDED that Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim in writing in a manner reasonable satisfactory to Lessor) furnish Lessee with copies of any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect requests for information from any taxing authority relating to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability Taxes with respect to which indemnity Lessee may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating required to an asserted Tax liability are referred to herein collectively as a "Contest")indemnify hereunder. If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, requested by Lessee in writing within thirty (30) calendar days of or such shorter period as may be required by Law after its receipt of such notice, Lessor shall, at the notice expense of asserted Tax liability Lessee (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by powerincluding all reasonable out-of-pocket costs, and reasonable in-house or outside attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(aaccountants fees).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form good faith contest (or, if permitted by applicable law, allow Lessee to contest), through appropriate administrative and substance satisfactory judicial proceedings the validity, applicability or amount of such Taxes by resisting payment thereof, not paying the same except under protest if protest is necessary and proper or if the payment is made, using reasonable efforts to Bancorp, their obligation to indemnify Bancorp obtain a refund thereof in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.an appropriate administrative and/or judicial
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp The Buyer shall promptly notify Shareholders the Sellers' Representative in writing of the commencement any written notice of any Tax a proposed assessment or claim in an audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ involving the Company which, if determined adversely to the taxpayer or after the lapse of time taxpayer, would be grounds for indemnification under this Section 8.01(a). Such 6.4; PROVIDED, HOWEVER, that a failure to give such notice shall contain factual information (will not affect the Buyer's right to indemnification hereunder, except to the extent known to Bancorp or ▇▇▇▇▇) describing extent, if any, that, but for such failure, the asserted Sellers' Representative could have avoided the Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liabilityquestion. If Bancorp fails to give Shareholders prompt notice In the case of an asserted Tax liability as audit or administrative or judicial proceeding that relates to any Pre-Closing Period, PROVIDED that within 30 days after the Sellers' Representative receives the written notice from the Buyer required by under this Section 8.05(b), then (i6.4(k) if Shareholders are precluded by the failure and prior to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have taking any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) action with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and audit or administrative or judicial proceeding involving proceeding, the Sellers' Representative acknowledges in writing the Sellers' liability under this Section 6.4 to hold the Buyer and the Company harmless against the full amount of any asserted liability with respect to adjustment which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively made as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase result of such Contest. If Shareholders choose audit or proceeding, the Sellers' Representative shall have the right at his, her or its own expense to direct control the Contestconduct of such audit or proceeding; PROVIDED, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in HOWEVER, that the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ Sellers' Representative shall not settle or otherwise compromise any asserted issue or matter without the Buyer's prior written consent if such issue or matter will have a material affect on the Tax liability over of the objection Buyer or the Company for a post-Closing taxable year or period (or for an Interim Period). The Buyer also may participate in any such audit or proceeding at its own expense and, if the Sellers' Representative does not assume the defense of Shareholders. If Shareholders elect not any such audit or proceeding, the Buyer may, without any effect to direct its or the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no Company's right to participate indemnification under this Section 6.4, defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding. Except as provided otherwise in this Section 6.4(k), the Contest Buyer shall control at its own expense any and (y) Bancorp all audit, administrative and judicial proceedings related to the Company or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionthe Company's Taxes.
Appears in 1 contract
Sources: Stock Purchase Agreement (Russell-Stanley Holdings Inc)
Contests. Upon receipt by Buyer or any Affiliate of Buyer of any notice of any Audit with respect to Excluded Taxes or any other Taxes for which the Sellers may be liable hereunder (aany such Audit, a "TAX MATTER"), Buyer will notify the Sellers of any such Tax Matter within (x) Shareholders three Business Days if, under applicable Law, the written response to such Tax Matter is required within 20 days after the receipt by Buyer of such notice of such Tax Matter, and (y) ten calendar days in all other cases. The Sellers may, at their expense, participate in and, upon notice to Buyer, assume the defense of any such Tax Matter. Upon receipt of such notice from Sellers, Buyer will allow ▇▇▇▇▇ grant to Sellers a special and its counsel limited power of attorney in favor of Sellers, duly authenticated by a Mexican notary public, for lawsuits and collections to participate at its own expense permit Sellers to properly defend or contest such Tax Matter. No delay in any audits or failure by Buyer to give notice of a consolidatedsuch Tax Matter or to deliver such power of attorney pursuant to this Section 8.3(d) will alter or relieve the Sellers of their obligation to indemnify Buyer, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member except to the extent that the Sellers are prejudiced thereby or are prevented or in any way restricted from being able to assume the defense of such Returns relate Tax Matter. If the Sellers assume such defense, the Sellers will have the authority, with respect to ▇▇▇▇▇. Shareholders any Tax Matter, to represent the interests of the applicable Purchased Subsidiary before the relevant Taxing Authority and will have the right to control the defense, compromise or other resolution of any such Tax Matter, including responding to inquiries and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matter; provided, however, the Sellers will not settle enter into any settlement of or otherwise compromise any such audit in a manner which would Tax Matter to the extent that it could reasonably be expected to adversely affect ▇▇▇▇▇ the Tax liability of any Purchased Subsidiary for a period (or portion thereof) beginning after the Closing Date unless such settlement would without the prior written consent of Buyer, which consent shall not be reasonable unreasonably withheld. Buyer has the right (but not the duty) to participate in the case defense of a Person that owned ▇▇▇▇▇ both before such Tax Matter and after to employ counsel, at its own expense, separate from the Closing Date.
(b) After counsel employed by the Closing, Bancorp shall promptly notify Shareholders Sellers. If Buyer elects to participate in writing of the commencement defense of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b)Matter, then (i) if Shareholders are precluded by Buyer shall be entitled to (A) without in any way limiting or affecting Sellers' right to assume the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out defense of such asserted Tax liabilityMatter, participate fully in the conduct of such Tax Matter, including participating in all conferences and attending all meetings with the relevant authorities, and (iiB) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholdersconsult with the Sellers, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their its own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (regarding any such auditTax Matter, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liabilityand Sellers shall consider in good faith any suggestions made by Buyer, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ the Sellers shall provide Buyer with a copy of all documents (or portions thereof) relating to such Tax Matter and (iii) the Sellers will not enter into any settlement of or otherwise compromise any such Tax Matter to the extent that it could reasonably be expected to adversely affect the Tax liability of any Purchased Subsidiary for a period (or portion thereof) beginning after the Closing Date without the prior written consent of Buyer, which consent shall not settle be unreasonably withheld. The Sellers will allow Buyer to consult with Sellers regarding the conduct of or compromise positions taken in any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionproceeding.
Appears in 1 contract
Contests. Notwithstanding anything to the contrary contained in this Agreement:
(a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after After the Closing Date.
(b) After the Closing, Bancorp Purchaser shall promptly notify Shareholders Seller in writing within ten (10) days of the commencement of date a claim is made or threatened in writing by any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichTaxing Authority that, if determined adversely successful, may reasonably be expected to the taxpayer or after the lapse of time would be grounds for indemnification result in an indemnity payment by Seller under Section 8.01(a10.4 (a "Tax Claim"). Such notice shall contain factual information (describing in reasonable detail the nature and basis of such claim and the amount thereof, to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail known, and shall include copies of any notice or other document received from any Tax Taxing Authority in respect of any such asserted Tax liability. If Bancorp fails Failure by Purchaser to give Shareholders prompt such notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by to the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders Seller shall not relieve the Seller of any liability that it may have any on account of its indemnification obligation under this Article X, except to indemnify for any loss arising out the extent that the Seller is materially and adversely prejudiced thereby in the defense of such asserted Tax liabilityClaim; provided, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholdershowever, then that irrespective of whether the Seller is materially or adversely prejudiced, Seller may reduce any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced Seller may have on account of its indemnification obligation under this Article X by the amount of such detriment.
(c) Shareholders may elect to directits actual, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by powerout-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate pocket monetary damages that are caused by the Purchaser's failure to represent Bancorp or ▇▇▇▇▇ in timely give the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under notice required pursuant to this Section 8.01(a10.7(a).
(db) If Shareholders elect not Seller will have the right, at its option, upon timely notice to direct Purchaser, to assume at its own expense control of any audit or other defense of any Tax Claim (other than a Tax Claim relating solely to Taxes of the Contest and acknowledge Company for a Straddle Period, which as described below, the parties shall jointly control) with its own counsel, provided that Seller's notice acknowledges Seller's indemnification liability for such claim. Seller's right to control a Tax Claim will be limited to issues in writingrespect of which amounts in dispute would be paid by Seller or for which Seller would be liable pursuant to Section 10.4. Costs of defending or contesting such Tax Claims are to be borne by Seller unless the Tax Claim relates to a Straddle Period, in form which event such costs shall be fairly apportioned as described below. Purchaser and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, the Company at their own expenseexpense each shall cooperate with Seller in contesting any Tax Claim, which cooperation shall include the retention and, upon Seller's request, the provision of records and information that are reasonably relevant to such Tax Claim and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder. Notwithstanding the foregoing, Seller shall neither consent nor agree to the settlement of any Tax Claim with respect to any liability for Taxes that may affect the liability for any state, federal or foreign income tax of the Company or any affiliated group (as defined in section 1504(a) of the Code) of which the Company is a member for any Post-Closing Tax Period without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed, and neither Seller, nor any Affiliate of Seller, shall file an amended Tax Return that may increase the liability for Taxes of the Company for any Post-Closing Tax Period without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed. Purchaser and Seller shall jointly control all proceedings taken in connection with any Tax Claims relating solely to a Straddle Period of the Company and each party shall bear its own out-of-pocket costs and expenses of the contest and all joint costs and expenses of the contest shall be borne in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over same ratio as the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionapplicable proposed Tax would be allocated.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp the Parent shall promptly notify the Shareholders in writing of the commencement any written notice of any Tax a proposed assessment or claim in an audit or administrative or judicial proceeding of the Parent or of any demand or claim on Bancorp or ▇▇▇▇▇ of the Company, the Subsidiary and the LLC Subsidiary which, if determined adversely to the taxpayer or after the lapse of time taxpayer, would be grounds for indemnification under Section 8.01(a). Such this Article VII; provided, however, that a failure to give such notice shall contain factual information (will not affect the Parent's rights to indemnification under this Article VII except to the extent known that the Shareholders demonstrate that they were materially prejudiced thereby.
(b) In the case of an audit or administrative or judicial proceeding that relates to Bancorp periods ending on or ▇▇▇▇▇) describing before the asserted Tax Effective Time (or if later, the Closing Date), provided that the Shareholders acknowledge in writing its liability in reasonable detail under this Agreement to hold the Parent, the Company, and shall include copies the Subsidiary harmless against the full amount of any notice adjustment which may be made as a result of such audit or other document proceeding that relates to periods ending on or before the Closing Date, the Shareholders shall have the right at their expense to participate in and control the conduct of such audit or proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which the Shareholders have acknowledged its liability. As security for the indemnification provided hereunder, the Shareholders shall place 10% of the shares of the Parent's Common Stock received from by them at the Closing in escrow pursuant to the Escrow Agreement. The Parent shall also have the right at its expense to participate in such audit or proceeding, but the Parent shall have no right to control all or any Tax Authority in respect portion of such audit or proceeding permitted to be controlled by the Shareholders under the immediately preceding sentence. If the Shareholders assume the defense of any such asserted audit or proceeding, and the Shareholders and the relevant taxing authority are thereafter willing to settle such audit or proceeding for the payment by the Shareholders of a fixed amount of Tax liability. If Bancorp fails but the Parent rejects such settlement, then the Shareholders' liability under this sentence for Taxes with respect to give such audit or proceeding shall be limited to the aggregate amount of the proposed settlement and the Shareholders prompt notice of an asserted Tax liability shall not be liable for any expenses incurred by the Parent with respect to such audit or
(c) With respect to issues relating to a potential adjustment for which the Shareholders, on the one hand (as required evidenced by its acknowledgment under this Section 8.05(b7.06), then and the Parent or the Company, the Subsidiary or the LLC Subsidiary, on the other hand, could be liable, or which recur for any period ending after the Effective Time (or if later, the Closing Date) (whether or not the subject of audit at such time), (i) if Shareholders are precluded by each party (either the failure to give prompt notice from contesting Shareholders, on the asserted Tax liability one hand, or the Parent, the Company, or the Subsidiary, on the other hand) may participate at its own expense in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liabilityaudit or proceeding, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) the audit or proceeding with respect to such liability issues shall be reduced controlled by that party which would bear the burden of the greater portion of the present value of the Tax attributable to the adjustments and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VII by the amount of such detriment.
(c) Shareholders may elect to directParent, through counsel of their own choosing on the one hand, and at their own expensethe Shareholders, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct on the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)hand.
(d) If Except as provided in Section 7.06(b) above, neither the Parent nor the Shareholders elect shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other parties for such year or a subsequent year without the written consent of the other parties, which consent may not be unreasonably withheld. The Parent and the Shareholders agree to direct cooperate, and the Contest Parent agrees to cause the Company, the Subsidiary and acknowledge in writing, in form and substance satisfactory the LLC Subsidiary to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expensecooperate, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle defense against or compromise of any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate claim in the Contest and (y) Bancorp any audit or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionproceeding.
Appears in 1 contract
Sources: Merger Agreement (Shaw Group Inc)
Contests. (ai) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after After the Closing Date.
(b) After , Seller and Buyer each shall notify the Closing, Bancorp shall promptly notify Shareholders other party in writing within ten (10) days of the commencement of any Tax audit or administrative or judicial proceeding or affecting the Taxes of any demand of Panhandle or claim on Bancorp or ▇▇▇▇▇ whichthe Panhandle Subsidiaries that, if determined adversely to the taxpayer (the "Tax Indemnified Party") or after the lapse of time would be grounds for indemnification under this Section 8.01(a5.7 by the other party (the "Tax Indemnifying Party" and a "Tax Claim"). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the any asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority authority in respect of any such asserted Tax liability. If Bancorp fails Failure to give Shareholders prompt notice of an asserted Tax liability as required by such notification shall not affect the indemnification provided in this Section 8.05(b5.7 except to the extent the Tax Indemnifying Party shall have been prejudiced as a result of such failure (except that the Tax Indemnifying Party shall not be liable for any expenses incurred during the period in which the Tax Indemnified Party failed to give such notice). Thereafter, then the Tax Indemnified Party shall deliver to the Tax Indemnifying Party, as promptly as possible but in no event later than ten (i10) if Shareholders are precluded days after the Tax Indemnified Party's receipt thereof, copies of all relevant notices and documents (including court papers) received by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and Indemnified Party.
(ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by In the amount case of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and an audit or administrative or judicial proceeding involving any asserted liability for Taxes relating to any Taxable years or periods ending on or before the Closing Date, Seller shall have the right, at its expense, to control the conduct of such audit or proceeding; provided, however, that if Seller does not timely take control of such audit or proceeding, Buyer may, at its expense, control the conduct of the audit or proceeding. In the case of an audit or administrative or judicial proceeding involving any asserted liability for Taxes relating to any Straddle Period, Buyer shall have the right, at its expense, to control the conduct of such audit or proceeding; provided, however, that (A) Buyer shall keep Seller reasonably informed with respect to which indemnity may be sought under Section 8.01(a) (any the status of such audit, claim for refund audit or proceeding relating and provide Seller with copies of all written correspondence with respect to an asserted such audit or proceeding in a timely manner and (B) if such audit or proceeding would be reasonably expected to result in a material increase in Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct of Panhandle or the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability Panhandle Subsidiaries for which Shareholders Seller would be liable under this Section 8.01(a)5.7 Seller may participate in the conduct of such audit or proceeding at its own expense.
(diii) If Shareholders elect not to direct In the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle case of an audit or compromise administrative or judicial proceeding involving any asserted liability over for Taxes relating to any Taxable years or periods beginning after the objection Closing Date, Buyer shall have the right, at its expense, to control the conduct of Shareholders. If Shareholders elect not such audit or proceeding.
(iv) Buyer and Seller shall reasonably cooperate in connection with any Tax Claim, and such cooperation shall include the provision to direct the Contest Tax Indemnifying Party of records and fail information which are reasonably relevant to such Tax Claim and making employees available on a mutually convenient basis to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest additional information and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionexplanation of any material provided hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Panhandle Eastern Pipe Line Co)
Contests. If an audit is commenced, an adjustment is proposed or any other claim is made by any Taxing Authority with respect to a Tax liability of the Company relating to a tax period or portion thereof ending on or prior to the Closing Date for which Verizon or Seller reasonably could be liable under Section 4.3.4(b), Buyer shall promptly notify Seller of such audit or such proposed adjustment or such claim (aunless Verizon or Seller previously was notified in writing by the relevant Taxing Authority). If Seller so requests and at Seller's expense, Buyer shall cause the relevant entity (Buyer, the Company or any successor) Shareholders will allow ▇▇▇▇▇ to contest such claim on audit or by appropriate claim for refund or credit of Taxes or in a related administrative or judicial proceeding, and its counsel to participate shall permit Seller, at its own expense in any audits option and expense, to control the prosecution and settlement of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit or refund claim or related administrative or judicial proceeding with respect to those specific matters which could reasonably affect Verizon's Tax liability or the Tax liability of Seller, including any liability hereunder, or their right to payment; and, where deemed necessary by Seller and in accordance with the foregoing, Buyer shall cause the relevant entity to authorize by appropriate powers of attorney such persons as Seller shall designate to represent such entity with respect to such audit or refund claim or related administrative or judicial proceeding and to settle or otherwise resolve any such proceeding as it specifically relates to such matters; provided, however, that if the results of such Tax audit or proceeding could reasonably be expected to have a manner which would adversely affect ▇▇▇▇▇ after material adverse effect on the Closing Date unless such settlement would be reasonable in the case assets, business, operations, or financial condition of a Person that owned ▇▇▇▇▇ both before and Buyer for taxable periods ending after the Closing Date.
, then there shall be no settlement or closing or other agreement with respect thereto without the written consent of Buyer. Buyer shall further execute and deliver, or cause to be executed and delivered, to Seller or its designee all instruments and documents reasonably requested by Seller to implement the provisions of this subsection (be). Any refund of Taxes obtained by Buyer or the affected entity shall be paid promptly to Seller in accordance with Section 4.3.4(d) After hereof. Buyer shall have the Closing, Bancorp shall promptly notify Shareholders in writing sole right to represent the interests of the commencement of any Company in all other Tax audit audits or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detrimentcourt proceedings.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after After the Closing Date.
(b) After the Closing, Bancorp Buyer shall promptly notify Shareholders Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp Buyer or ▇▇▇▇▇ Company which, if determined adversely to the taxpayer or after the lapse of time time, would be grounds for indemnification under Section 8.01(a)11.1, within fifteen (15) days after such commencement or the receipt of such demand or claim. Such notice to Seller shall contain factual information (to the extent known to Bancorp Buyer or ▇▇▇▇▇Company) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority authority in respect of any such asserted Tax liability. If Bancorp Buyer fails to give Shareholders prompt Seller notice of an asserted Tax liability as required by this Section 8.05(b)11.3, then (i) then, if Shareholders are Seller is precluded by the failure to give prompt such notice from contesting the asserted Tax liability in both formal proceedings before either the administrative and or judicial forumsforum, then Shareholders Seller shall not have any obligation to indemnify Buyer or Company for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(cb) Shareholders Seller may elect to direct, through counsel of their its own choosing and at their its own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) 11.1 (any such audit, claim for refund or proceeding relating to an asserted Tax liability are is referred to herein collectively as a "“Contest"”); provided, however, that Buyer and Company and their duly appointed representatives shall have the right to participate in any such Contest, at their own expense, to the extent that such Contest relates to matters for periods after the Closing Date; and provided, further, that Seller shall obtain the consent of Buyer and Company prior to the resolution or settlement of any such dispute to the extent it relates to matters after the Closing Date, which consent shall not be unreasonably withheld or delayed. If Shareholders elect Seller elects to direct the Contest of an asserted Tax liability, they shalla Contest, within thirty (30) calendar days of after receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date liability, Seller shall notify Buyer of any protest or other claim in respect thereof), notify Bancorp of their its intent to do so so, and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp Buyer shall cooperate and shall cause ▇▇▇▇▇ Company or its respective successor or successors to cooperate cooperate, at Seller’s expense, in each phase of such Contest. If Shareholders choose Seller chooses to direct the Contest, Bancorp Buyer promptly shall promptly empower and shall cause ▇▇▇▇▇ promptly Company or its successor to empower (by power-of-power of attorney and such other documentation as may be necessary and appropriate) such representatives of Shareholders Seller as they it may designate to represent Bancorp Buyer or ▇▇▇▇▇ Company or their respective successors in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would Seller may be liable required to indemnify Buyer or Company under Section 8.01(a).
(d) 11.1. If Shareholders elect Seller elects not to direct the Contest and acknowledge in writingContest, in form and substance satisfactory fails to Bancorp, their notify Buyer of its election as herein provided or contests its obligation to indemnify Bancorp in full thereforunder Section 11.1, then (i) Shareholders Buyer or Company may participatepay, compromise or contest, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted Tax liability in their sole discretionwithout prejudice to any right of Buyer or Company to indemnification if otherwise entitled thereto hereunder.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp Acquirer and the Shareholders shall promptly notify Shareholders each other in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp received by the Shareholders, Acquirer or ▇▇▇▇▇ which, if determined adversely Target from any Tax authority or other party with respect to Taxes for which the taxpayer or after the lapse of time would be grounds for indemnification under Shareholders are liable pursuant to Section 8.01(a12.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇known) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(cb) The Shareholders (or their designee) may elect to directcontrol the conduct, through counsel of their its own choosing and at their its own expense, of any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a12.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are is referred to herein collectively as a "ContestContest "). If the Shareholders (or their designee) elect to direct the Contest of an asserted Tax liabilitycontrol a Contest, they shall, it shall within thirty (30) 20 calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date notify Acquirer of any protest or other claim in respect thereof), notify Bancorp of their its intent to do so so, and acknowledge in writingthe Shareholders (or their designee) shall have all rights to settle, in form compromise and/or concede such asserted liability; provided, however, that Acquirer shall have the right to consult with the Shareholders regarding any Contest that may affect the Acquirer or Target for any Post-Closing Period and substance satisfactory provided further that the Shareholders shall not have the right to Bancorpsettle, their obligation to indemnify Bancorp in full therefor. Bancorp compromise and/or concede any Contest that may affect the Acquirer or Target for any period after the Closing Date without Acquirer's prior written consent, which consent shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contestnot be unreasonably withheld. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct control the Contest and acknowledge in writingor fails to notify Acquirer of its election as herein provided, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ Acquirer may pay, compromise or contest contest, at its own expense, subject to (i) reimbursement by the Shareholders for reasonable third party expenses and (ii) the Shareholders' indemnification obligations under Section 12.01(a). Acquirer shall have the sole right to represent Target in any other Contest.
(c) In the event that the Shareholders shall after the Closing take any position in any Tax Return, or reach any settlement or agreement on audit, which is in any manner inconsistent with any position taken by the Target in any filing, settlement or agreement made by Target prior to the Closing and such asserted inconsistent position (i) requires the payment by Acquirer or Target of more Tax than would have been required to be paid had such position not been taken or such settlement or agreement not been reached, (ii) affects the determination of useful life, basis or method of depreciation, amortization or accounting of any of the assets or properties of Target or (iii) accelerates the time at which any Tax must be paid by Acquirer or Target, then the Shareholders, in each such case, shall provide timely and reasonable notice to Acquirer of such position and shall indemnify Acquirer and hold it harmless from any Tax liability or Tax cost or any Related Costs arising from, in their sole discretionconnection with or otherwise with respect to such position.
Appears in 1 contract
Sources: Merger Agreement (National Medical Health Card Systems Inc)
Contests. (a) Shareholders will allow ▇▇▇▇▇ Whenever any taxing authority asserts a claim, makes an assessment, or otherwise disputes the amount of Taxes owed by any Company or Company Subsidiary for which Sellers are or may be liable under this Agreement, Buyer shall promptly upon learning of such claim inform Sellers, and its counsel Sellers shall have the right to participate at its own expense in control any audits of a consolidatedresulting proceedings and to determine whether and when to settle any such claim, combined assessment or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member dispute to the extent such proceedings or determinations would materially affect the amount of Taxes for which Sellers are liable under this Agreement; PROVIDED, that Sellers shall not enter into any such Returns relate settlement without the consent of Buyer, which consent shall not be unreasonably withheld, if such settlement could affect the amount of Taxes for which Buyer is liable under this Agreement. Whenever any Taxing Authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which Buyer is liable under this Agreement, Sellers shall promptly upon learning of such claim inform Buyer, and Buyer shall have the right to ▇▇▇▇▇. Shareholders will not control any resulting proceedings and to determine whether and when to settle any such audit in claim, assessment or dispute to the extent such proceedings would materially affect the amount of Taxes for which Buyer is liable under this Agreement; PROVIDED, that Buyer shall not enter into any such settlement without the consent of the affected Seller, which consent shall not be unreasonably withheld, if such settlement could affect the amount of Taxes for which Sellers are liable under this Agreement. With respect to the Worldwide Companies and the Subsidiaries of the Worldwide Companies, for a manner which would adversely affect ▇▇▇▇▇ period of six years after the Closing Date unless such settlement would be reasonable in Worldwide Closing, and, with respect to Compass Australia and the case Australian Business, for a period of a Person that owned ▇▇▇▇▇ both before and six years after the Closing Date.
(b) After the Australia Closing, Bancorp shall promptly notify Shareholders in writing of and, if at the commencement of expiration thereof any Tax tax audit or administrative or judicial proceeding is in progress or the applicable statute of any demand limitations has been extended in writing, for such longer period as such tax audit or claim on Bancorp judicial proceeding is in progress or ▇▇▇▇▇ whichsuch statutory period has been agreed to be extended, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail Buyer shall, and shall include cause the Companies and Company Subsidiaries to maintain and make available to Lend Lease U.S. and the Sellers, on the reasonable request of Lend Lease U.S. or the Sellers, copies of any notice and all information, working papers, books and records used in the preparation of or other document received from any relating to the Tax Authority in respect Returns of any each of the Companies and Company Subsidiaries. After such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b)period, then (i) if Shareholders are precluded by Buyer, the failure to give prompt notice from contesting the asserted Tax liability in both the administrative Companies and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out Company Subsidiaries may dispose of such asserted Tax liabilityinformation, working papers, books and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detrimentrecords.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(bi) After the Closing, Bancorp Denbury shall promptly notify the Matrix Common Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp Denbury, Matrix or ▇▇▇▇▇ any Affiliate which, if determined adversely to the taxpayer or after the lapse of time time, would be grounds for indemnification under Section 8.01(a)by the Matrix Common Shareholders. Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇Denbury) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority Taxing authority in respect of any such asserted Tax liability. If Bancorp Denbury fails to give the Matrix Common Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b)liability, then (i) if the Matrix Common Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then the Matrix Common Shareholders shall not have any obligation to indemnify for any loss arising out an increase in a Tax liability allocable to the Matrix Common Shareholders as a result of such asserted Tax liabilityproceeding, and (ii) if the Matrix Common Shareholders are not so precluded from contesting contesting, but such failure to give prompt notice results in an increase in the Tax liability allocable to the Matrix Common Shareholders as a detriment to Shareholders, result of such proceeding then any amount which the Matrix Common Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) Denbury with respect to such liability shall be reduced by the amount of such detrimentincrease in the Tax liability allocable to the Matrix Common Shareholders that was the result of Denbury's failure to give prompt notice to the Matrix Common Shareholders. The failure to give such notice on a timely basis shall not affect the indemnification provisions provided herein except to the extent the Matrix Common Shareholders demonstrate they have been actually prejudiced as a result of such failure and such prejudice resulted in an increase in the Tax liability allocable to the Matrix Common Shareholders.
(cii) Shareholders may elect to directExcept as otherwise provided herein, through counsel of their own choosing and at their own expense, Denbury shall direct any audit, claim for or refund and administrative or judicial proceeding involving any asserted Tax liability with respect to which indemnity may be sought under Section 8.01(a) regarding Matrix (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). The Matrix Common Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any Contest of a Pre-Closing Return involving any asserted liability with respect to which indemnity may be sought from the Matrix Common Shareholders. If the Matrix Common Shareholders elect to direct the Contest of an asserted Tax liabilityliability of a Pre-Closing Return, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof)liability, notify Bancorp Denbury of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp Denbury shall cooperate and shall cause ▇▇▇▇▇ Matrix and Subsidiaries to cooperate cooperate, in each phase of such Contest. If the Matrix Common Shareholders choose do not elect to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives Contest of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for of a Pre- Closing Return, fail to notify Denbury of their election as herein provided, or contest their indemnification obligation, Denbury may pay, compromise or contest, at its expense, such asserted liability. Neither Denbury nor the Matrix Common Shareholders may settle or compromise any Contest involving any asserted liability with respect to which indemnity may be sought from the Matrix Common Shareholders would over the objection of the parties not directing the Contest, provided, however, that consent to settlement or compromise shall not be liable under Section 8.01(a).
(d) If Shareholders elect not to direct unreasonably withheld. In any event, both Denbury and the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Matrix Common Shareholders may participate, at their own expense, in any Contest involving an asserted Tax liability with respect to which indemnity may be sought from the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Matrix Common Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders will allow Subject to Section 6.2, ▇▇▇▇▇▇ has the right to contest the amount, validity or applicability, in whole or in part, of any Impositions, mechanics’ lien or encumbrance (including any arising from work performed or materials provided to Tenant or any Subtenant to improve all or a portion of the Premises) by appropriate proceedings conducted in good faith and with due diligence, at no cost to Port, provided that, prior to commencement of such contest, Tenant notifies Port of such contest. Tenant must notify Port of the final determination of such contest within fifteen (15) days after such determination. Subject to Section 6.2, nothing in this Lease requires Tenant to pay any Impositions, mechanics’ lien, or encumbrance so long as Tenant contests the validity, applicability or amount of such Impositions, mechanics’ lien or encumbrance in good faith, and so long as it does not allow the portion of the Premises affected by such Impositions, mechanics’ lien or encumbrance to be forfeited to the entity levying such Impositions, mechanics’ lien or encumbrance as a result of its counsel nonpayment. If any Law requires as a condition to participate such contest, that the disputed amount be paid under protest, or that a bond or similar security be provided, Tenant must comply with such condition as a condition to its right to contest. Tenant is responsible for the payment of any interest, penalties or other charges that may accrue as a result of any contest, and Tenant must provide a statutory lien release bond or other security reasonably satisfactory to Port in any instance where Port’s interest in the Premises may be subjected to such lien or claim. Tenant is not required to pay any Impositions, mechanics’ lien or encumbrance being so contested during the pendency of any such proceedings unless payment is required by the court or agency conducting such proceedings. Port, at its own expense and at its sole option, may elect to join in any audits of a consolidated, combined such proceeding whether or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent not any Law requires that such Returns relate proceedings be brought by or in the name of Port or any owner of the Premises. Port will not be subjected to any liability for the payment of any fines or penalties, and except as provided in the precedent sentence, costs, expenses, or fees, including Attorneys’ Fees and Costs, in connection with any such proceeding. Without limiting Article 28, Tenant will Indemnify the Indemnified Parties for all Losses resulting from ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement ’s contest of any Tax audit Imposition, mechanics’ lien or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detrimentencumbrance.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Sources: Master Lease
Contests. (a) Shareholders will allow ▇▇▇▇▇ Whenever any taxing authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which Seller is liable under this Agreement, Seller shall have the right to control any resulting proceedings and its counsel to participate at its own expense in determine whether and when to settle any audits of a consolidatedsuch claim, combined assessment or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member dispute, except to the extent that such Returns relate proceeding affects the amount of Taxes for which Purchaser is liable under this Agreement. Whenever any taxing authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which Purchaser is liable under this Agreement, Purchaser shall have the right to ▇▇▇▇▇. Shareholders will not control any resulting proceedings and to determine whether and when to settle any such audit in a manner claim, assessment or dispute, except to the extent such proceedings affect the amount of Taxes for which Seller is liable under this Agreement. Notwithstanding the foregoing, neither Seller nor Purchaser, as the case may be, shall be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which would adversely affect ▇▇▇▇▇ after the Closing Date unless liability for Taxes of the other party or either Company for which the other party is liable (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) to the extent such settlement would have a material adverse effect on the other party without the prior written consent of the other party. Such consent shall not be reasonable in unreasonably withheld, and shall not be necessary to the case extent that the party from which consent would normally be required has been indemnified by the other party against the effects of a Person that owned ▇▇▇▇▇ both any such settlement. With respect to claims for Taxes attributable to taxable periods beginning on or before and ending after the Closing Date.
, the party with the greatest potential liability for Taxes (b) After the Closing, Bancorp shall promptly notify Shareholders in writing either directly or by reason of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a4.2(b). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability claim (the "CONTROLLING PARTY") shall control the defense of such claim. The other party (the "NON-CONTROLLING PARTY") shall be reduced 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 be the subject of indemnification by the amount Non-Controlling Party pursuant to Section 4.2(b) and, with the written consent of the Controlling Party, and at its sole expense, may assume the entire defense of such detriment.
(c) Shareholders tax claim. Neither the Controlling Party nor either Company may elect agree to direct, through counsel of their own choosing and at their own expense, settle any audit, tax claim for refund and administrative the portion of the year or judicial proceeding involving any asserted liability with respect to period ending on the Closing Date which indemnity may be sought the subject of indemnification by the Non-Controlling Party under Section 8.01(a4.2(b) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct without the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt prior written consent of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof)Non-Controlling Party, notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ consent shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionbe unreasonably withheld.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp Parent shall promptly notify Shareholders the Stockholders in writing of the commencement any written notice of any Tax a proposed assessment or claim in an audit or administrative or judicial proceeding of Parent or of any demand or claim on Bancorp or ▇▇▇▇▇ the Company which, if determined adversely to the taxpayer or after the lapse of time taxpayer, would be grounds for indemnification under this Article VIII; provided, however, that a failure to give such notice will not affect Parent's right to indemnification under this Article VIII except to the extent, if any, that, but for such failure, the Stockholders could have avoided all or a portion of the Tax liability in question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing and provided that the Stockholders acknowledge in writing their liability under this Agreement to hold Parent and the Company harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to periods ending on or before the Closing (or, in the case of any taxable year that includes the Closing, against an adjustment allocable under Section 8.01(a). Such notice 8.01 to the portion of such year ending on or before the Closing Date) and is subject to indemnification under Section 7.01, the Stockholders shall contain factual information (have the right at their expense to participate in and control the conduct of such audit or proceeding but only to the extent known that such audit or proceeding relates solely to Bancorp a potential adjustment for which the Stockholders have acknowledged their liability; Parent also may participate in any such audit or ▇▇▇▇▇) describing proceeding and, if the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect Stockholders do not assume the defense of any such asserted Tax liabilityaudit or proceeding, Parent may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Stockholders setting forth the terms and conditions of settlement. If Bancorp fails In the event that issues relating to give Shareholders prompt notice of an asserted Tax a potential adjustment for which the Stockholders have acknowledged their liability are required to be dealt with in the same proceeding as required separate issues relating to a potential adjustment for which Parent would be liable, Parent shall have the right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Stockholders (as evidenced by its acknowledgment under this Section 8.05(b)8.04) and Parent or the Company could be liable, then (i) if Shareholders are precluded by each party may participate in the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liabilityaudit or proceeding, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in a detriment to Shareholdersthe immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, then any amount without limitation, choice of judicial forum) in situations in which Shareholders separate issues are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced controlled under this Article VIII by Parent and the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)Stockholders.
(d) If Shareholders elect Neither Parent nor any Stockholder shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affectthe other party for such year or a subsequent year without the written consent of the other party, which consent may not be unreasonably withheld. Parent and the Stockholders agree to direct cooperate, and Parent agrees to cause the Contest and acknowledge in writing, in form and substance satisfactory Company to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expensecooperate, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle defense against or compromise of any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate claim in the Contest and (y) Bancorp any audit or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionproceeding.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp Buyer shall promptly notify Shareholders Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp Buyer or ▇▇▇▇▇ the Company Parties which, if determined adversely to the taxpayer or after the lapse of time taxpayer, would be grounds for indemnification under Section 8.01(a)this Article XII. Such notice shall contain factual information (to the extent known to Bancorp Buyer or ▇▇▇▇▇any Company Party) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority taxing authority in respect of any such asserted Tax liability. If Bancorp Buyer fails to give Shareholders Seller prompt notice of an asserted Tax liability as required by this Section 8.05(b)12.5, then (i) if Shareholders are Seller is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both either the administrative and or the judicial forumsforum, then Shareholders Seller shall not have any obligation to indemnify for any loss Tax or Contest Expense arising out of such asserted Tax liability, and (ii) if Shareholders are Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to ShareholdersSeller, then any amount which Shareholders are Seller is otherwise required to pay Bancorp Buyer pursuant to Section 8.01(a) 12.1 with respect to such liability shall be reduced by the amount of such detriment, if calculable.
(cb) Shareholders may elect Prior to directthe Closing Date, through counsel of their own choosing and at their own expense, Seller shall control any audit, claim for refund and or administrative or judicial proceeding involving any asserted Tax liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are is referred to herein collectively as a "Contest"). If Shareholders elect After the Closing Date, in the case of a Contest that relates to direct the Contest of an asserted a Tax liability, they shall, within thirty Return (30or any item relating thereto or reported thereon) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days for a Taxable period ending on or before the due date of any protest or other claim in respect thereof)Closing Date, notify Bancorp of their intent to do so Seller shall at its expense undertake and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase control the conduct of such Contest, and for all Taxable periods straddling or beginning on the day after the Closing Date, Buyer shall control such Contests; provided, however, that Buyer shall control a contest solely as to any portion of the Tax Return of CPLP for the taxable year ending on the Closing Date, the resolution of which could cause a payment to be made to Triarc pursuant to the Tax Indemnity Provisions of the Triarc Purchase Agreement. If Shareholders choose Seller does not assume the defense of any such Contest for a Taxable period ending on or before the Closing Date, Buyer may defend the same in such 66 81 manner as it may deem appropriate, including settling such Contest (subject, however, to direct Section 12.5(d) if such settlement would adversely affect Seller) after giving ten days" prior written notice to Seller setting forth the Contestterms and conditions of settlement. In the event of a Contest covered by the second sentence of this paragraph that involves issues relating to a potential adjustment for which Seller has liability that also involves separate issues relating to a potential adjustment for which Buyer would be liable, Bancorp Buyer shall promptly empower and shall cause ▇▇▇▇▇ promptly have the right, at its expense, to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in control the Contest insofar as but only with respect to the latter issues.
(c) Neither Buyer nor Seller shall enter into any compromise or agree to settle any claim pursuant to any Contest involves an asserted Tax liability which would adversely affect the other party for such year or a subsequent or prior year without the written consent of the other party, which Shareholders would consent may not be liable under Section 8.01(a)unreasonably withheld, conditioned or delayed.
(d) If Shareholders elect not Notwithstanding any other provision of this Section 12.5, the defense of any Third Party Claim in respect of which indemnity may be sought under Section 10.3 shall be subject to direct all obligations imposed by the Triarc Purchase Agreement with respect to the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionThird Party Claim.
Appears in 1 contract
Contests. (aA) Shareholders will allow ▇▇▇▇▇ and its counsel If the Buyer or the Company receives written notice of any pending or threatened audit or other examination by any Governmental Authority, or any judicial or administrative proceedings relating to participate at its own expense Taxes (each, a “Tax Contest”) that would reasonably be expected to result in Losses that are indemnifiable under this Agreement, the Buyer shall promptly notify the Sellers’ Representative. If the Sellers’ Representative or any audits Seller receives written notice of a consolidatedTax Contest that would reasonably be expected to result in Losses that are indemnifiable under this Agreement, combined such Party shall promptly notify the Buyer. In each case within this clause (vi), the failure or unitary Tax Return delay in delivering such notice shall not relieve a Party of an Affiliated Group of which ▇▇▇▇▇ was a member its obligations hereunder except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such Returns relate failure. Such written notice shall describe the Tax Contest and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party.
(B) If such Tax Contest relates solely to ▇▇▇▇▇any Taxable period ending on or prior to the Closing Date, and not to the Straddle Period or any post-Closing period, the Sellers’ Representative shall have the right (but not the obligation) to be exercised within ten (10) Business Days following its receipt of the written notice of such Tax Contest, by delivering written notice to the Buyer, to assume and thereafter conduct and control the defense of such Tax Contest (with counsel of the Sellers’ Representative’s choice). Shareholders will For so long as the Sellers’ Representative is conducting and controlling such defense the Sellers’ Representative shall provide Buyer with notice of material developments in such Tax Contest and the Buyer shall have the right, but not settle the obligation, to participate in such defense with separate counsel of its choosing at its sole cost and expense. The Sellers’ Representative shall not be permitted to consent to the entry of any judgment or enter into any settlement of such audit in Tax Contest which may and adversely impact the Buyer (or the Company for a manner which would adversely affect ▇▇▇▇▇ Taxable period ending after the Closing Date unless such settlement would or the Tax attributes of the Company) without the prior written consent of the Buyer (not to be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Dateunreasonably withheld, conditioned, or delayed).
(bC) After Unless and until the ClosingSellers’ Representative assumes the defense of such Tax Contest, Bancorp shall promptly notify Shareholders the Buyer may defend against such Tax Contest in writing any manner it may reasonably deem appropriate (with counsel of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichBuyer’s choice), if determined adversely in which case the Sellers’ Representative (I) shall cooperate with the Buyer in such defense and make available to the taxpayer Buyer and its Representatives all witnesses, pertinent records, materials, and information in or after under the lapse of time would Sellers’ Representative’s possession or control relating thereto as may be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded reasonably requested by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liabilityBuyer, and (iiII) if Shareholders are shall have the right, but not so precluded from contesting but the obligation, to participate in such failure defense with separate counsel of its choosing at its sole cost and expense. The conduct of such defense by the Buyer shall not be construed to give prompt notice results in be a detriment waiver of the Buyer’s right to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) indemnification with respect to such liability shall be reduced by the amount of such detrimentTax Contest.
(cD) Shareholders may elect to directFor the avoidance of doubt, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding the procedures relating to an asserted any Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty shall be governed by this clause (30vi) calendar days of receipt of the notice of asserted Tax liability (but and not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a7(d)(ii).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (XL Fleet Corp.)
Contests. (a) Shareholders will allow ▇▇▇▇▇ and If any Governmental Authority issues to Buyer, the Company, Holdco or any of their respective Affiliates a written notice of its counsel intent to participate at audit, examine or conduct a proceeding, a written notice of its own expense in determination of an objection to an assessment with respect to Taxes or Tax Returns of the Company or Holdco for a Pre-Closing Tax Period or a Straddle Period, or a written notice or inquiry with respect to any audits Taxes or the filing of a consolidated, combined or unitary Tax Return (a “Tax Claim”), Buyer shall notify Seller of an Affiliated Group its receipt of which ▇▇▇▇▇ was such Tax Claim within five (5) Business Days following receipt; provided however, that the failure of Buyer to notify Seller of its receipt of a member Tax Claim within five (5) Business Days shall not relieve Seller from liability pursuant to Section 6.03(a) except to the extent that Seller is materially prejudiced as a consequence of such Returns relate failure. Seller shall control any Tax Claim and any other matter with respect to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Pre-Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing Tax Period of the commencement of Company or Holdco (a “Seller’s Tax Contest”); provided, that with respect to a Seller’s Tax Contest that involves United States federal or Arizona income Taxes (a “Seller’s Consolidated Tax Contest”) Seller shall provide Buyer with any information that Buyer reasonably requests that pertains solely to either the Company or Holdco and is in connection with the Seller’s Consolidated Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichContest and, if determined adversely provided further, with respect to a Seller’s Tax Contest that is not a Seller’s Consolidated Tax Contest (i),the Buyer, at its sole cost and expense, shall have the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (right to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted participate in such Seller’s Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, Contest; and (ii) Seller shall not settle such Seller’s Tax Contest without Buyer’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned, provided that, if Shareholders are Buyer does not so precluded from contesting but consent to the settlement then (a) Buyer shall be obligated to assume the defense of such failure Seller’s Tax Contest; and (b) Buyer’s indemnification obligations relating to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp such Seller’s Tax Contest pursuant to this Agreement (including for the avoidance of doubt Section 8.01(a6.03(a)) with respect to such liability shall be reduced by limited to the amount of Taxes that Buyer would have been obligated to indemnify if such detriment.
Seller’s Tax Contest was resolved in accordance with the terms of the proposed settlement. Buyer shall control any Tax Claim that is not a Seller’s Tax Contest (c) Shareholders may elect to directa “Buyer’s Tax Contest”), through counsel of their own choosing provided that Seller, at its sole cost and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no the right to participate in any Buyer’s Tax Contest that relates to a Straddle Period. Notwithstanding anything in this Agreement to the Contest contrary, Buyer, the Company or Holdco or any of their respective Affiliates shall not resolve, settle, compromise, or abandon any issue or claim without the prior written consent of Seller if such action would result in the imposition of any Pre-Closing Taxes on the Company or Holdco, as applicable; provided, however, Buyer, the Company, Holdco and (y) Bancorp their respective Affiliates shall be entitled to enter into such settlement without the consent of Seller so long as Buyer, the Company and Holdco agree in writing that Seller shall not be responsible for or ▇▇▇▇▇ may pay, compromise covenant to pay and shall not indemnify the Buyer Indemnitees from and against any Pre-Closing Taxes of the Company or contest Holdco resulting from such asserted liability in their sole discretionsettlement or action.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Contests. (a) Shareholders Seller will have the exclusive authority to control any Tax audit or examination by any Governmental Authority, initiate any claim for refund, amend any Tax Return and contest, resolve, and defend against any assessment for Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any Liability of any Person in Company Group for Taxes for any Tax period ending on or before the Closing Date. Subject to the foregoing, Seller will allow ▇▇▇▇▇ and its counsel Buyer to participate at Buyer’s expense in any such contest that would reasonably be expected to have a continuing effect on any Person in Company Group and its own Affiliates after the Closing Date or would reasonably be expected to result in any adjustment to a Tax Return of any Person in Company Group for any other Tax period. Seller will not settle any such Tax audit or examination in a manner that would adversely affect any Person in Company Group after the Closing Date without the prior written consent of Buyer, which consent will not unreasonably be withheld, delayed or conditioned. Buyer will have the exclusive authority to control any Tax audit or examination by any Governmental Authority, initiate any claim for refund, amend any Tax Return and contest, resolve and defend against any assessment for Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any Liability of any Person in Company Group or Buyer or any successor thereto for Taxes for any Tax period ending after the Closing Date. Subject to the foregoing, Buyer will allow Seller to participate at Seller’s expense in any audits or examinations of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member Returns to the extent that such Returns relate audits or examinations would reasonably be expected to ▇▇▇▇▇require Seller to make a payment under this Agreement. Shareholders Buyer will not settle any such Tax audit or examination in a manner which that would adversely affect ▇▇▇▇▇ after Seller without the Closing Date unless such settlement would prior written consent of Seller, which consent will not unreasonably be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Datewithheld, delayed or conditioned.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ Whenever any Taxing Authority asserts a claim, makes an assessment, or otherwise disputes the amount of Taxes with respect to the Purchased Assets relating solely to any Tax period ending on or before the Closing Date, Purchaser shall upon receipt of such assertion, use reasonable best efforts to promptly inform Seller in writing and Seller shall have the right to control any resulting Actions and to determine whether and when to settle any such claim, assessment or dispute to the extent such Actions or determinations affect the amount of Taxes for which Seller may be liable under this Agreement; provided, however, that to the extent such claim, assessment, or dispute is reasonably expected to affect Purchaser or any of its counsel Affiliates for any Post-Closing Tax Period, Purchaser shall be entitled to participate in such Tax Action at its own expense in and attend any audits meetings or conferences with the relevant Taxing Authority, and Seller, Sigma, the Sigma entities, or their Affiliates, as applicable shall not settle, compromise or abandon any such claim, assessment or dispute without obtaining the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed. Whenever any Taxing Authority asserts a consolidatedclaim, combined makes an assessment or unitary otherwise disputes the amount of Taxes relating to any Straddle Period or any Post-Closing Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member Period, Purchaser shall have the right to the extent that such Returns relate control any resulting Actions and to ▇▇▇▇▇. Shareholders will not determine whether and when to settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable claim, assessment or dispute, except in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp shall promptly notify Shareholders in writing of the commencement of any Straddle Period Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (Return to the extent known such claim, assessment, or dispute is reasonably expected to Bancorp affect Seller or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies any of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b)its Affiliates, then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability Seller shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right entitled to participate in such claim, assessment, or dispute at its own expense and attend any meetings or conferences with the Contest relevant Taxing Authority, and (y) Bancorp or ▇▇▇▇▇ may payPurchaser shall not settle, compromise or contest abandon any such asserted liability in their sole discretionclaim, assessment or dispute without obtaining the prior written consent of Seller, which such consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Contests. (ai) Shareholders will allow The ▇▇▇▇▇ Representative and its duly appointed representatives shall have the authority to control any audit or examination by any taxing authority, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any liability of ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which subsidiaries for all ▇▇▇▇▇ was a member to Pre-Closing Periods; PROVIDED, HOWEVER, that neither the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after Representative nor any duly appointed representative of the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after Representative shall, without the Closing Date.
(b) After the Closingprior consent of UbiquiTel Parent, Bancorp which consent shall promptly notify Shareholders in writing of the commencement not be unreasonably withheld, enter into any settlement of any contest or otherwise compromise any issue that would have a material adverse effect on the Tax audit or administrative or judicial proceeding or benefits of any demand or claim on Bancorp UbiquiTel Parent or ▇▇▇▇▇ which, if determined adversely to the taxpayer or any subsidiary for taxable years ending after the lapse Closing Date. UbiquiTel Parent and its duly appointed Representatives shall have the exclusive authority to control any audit or examination by any taxing authority, initiate any claim for refund, amend any Tax Return and contest, resolve and defend against any assessment for additional Taxes, notice of time would be grounds Tax deficiency or other adjustment of Taxes of or relating to any liability of ▇▇▇▇▇ and its subsidiaries for indemnification under Section 8.01(aTaxes for any taxable year or other taxable period ending after the Closing Date (the "POST-CLOSING PERIODS"). Such notice shall contain factual information ; PROVIDED, HOWEVER, that (to the extent known to Bancorp or a) none of UbiquiTel Parent, ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of , its subsidiaries nor any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they duly appointed representatives shall, within thirty (30) calendar days of receipt without the prior written consent of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase Representative, enter into any settlement of such Contest. If Shareholders choose to direct any contest or otherwise compromise any issue that adversely affects the Contest, Bancorp shall promptly empower and shall cause liability of the ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or Stockholders for any ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writingPre-Closing Period Taxes, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (iib) neither Bancorp none of UbiquiTel Parent, ▇▇▇▇▇, its subsidiaries nor any of their duly appointed representatives shall, without the prior consent of the ▇▇▇▇▇ shall not settle Representative, enter into any settlement of any contest or otherwise compromise any asserted liability over issue that would require payment by the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or Controlling ▇▇▇▇▇ may pay, compromise Stockholders (as defined herein) of any amount under this Agreement unless UbiquiTel Parent shall have waived or contest such asserted liability in their sole discretioncaused to be waived for itself and ▇▇▇▇▇ and its subsidiaries any right to indemnification for Taxes from the Controlling ▇▇▇▇▇ Stockholders.
Appears in 1 contract
Contests. (ai) Shareholders will allow ▇▇▇▇▇ Whenever any taxing authority asserts a claim, makes an assessment or otherwise disputes or affects the Income Tax reporting position of the United States Purchased Entities for periods prior to the Closing Date or the amount of Taxes for which Seller is or may be liable under this Agreement, Holdings shall, promptly upon receipt by Holdings or the United States Purchased Entities of notice thereof, inform Seller, and its counsel Seller shall have the right to participate at its own expense in control any audits of a consolidatedresulting proceedings and to determine whether and when to settle any such claim, combined assessment or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member dispute, to the extent such proceedings or determinations affect the Income Tax reporting position of the United States Purchased Entities for periods prior to the Closing Date or the amount of Taxes for which Seller is liable under this Agreement; provided that such Returns relate to ▇▇▇▇▇. Shareholders will not settle Seller shall consult in good faith with Holdings regarding any such audit audit, proceeding or determination to the extent such audit, proceeding or determination would reasonably be expected to affect Taxes for which the United States Purchased Entities, Purchaser or Holdings is liable under this Agreement; and, provided further, that, without the prior written consent of Holdings (such consent not to be unreasonably withheld), (A) neither Seller nor any of its Affiliates shall, unless otherwise required by Law, take any position on any Tax Return or in a manner which would adversely affect ▇▇▇▇▇ any contest or proceeding relating to Taxes after the Closing Date unless such not in accordance with past custom and practice that materially adversely affects the United States Purchased Entities, their respective Tax attributes or Tax liability for a taxable period or portion thereof beginning after the Closing Date, and (B) neither Seller nor any of its Affiliates shall agree to any settlement in respect of any contest or proceeding relating to Taxes (other than federal Income Taxes) after the Closing Date not in accordance with past custom or practice which would be reasonable in materially adversely affect the case of United States Purchased Entities, their respective Tax attributes or Tax liability for a Person that owned ▇▇▇▇▇ both before and taxable period or portion thereof beginning after the Closing Date.
(bii) After Whenever any taxing authority asserts a claim, makes an assessment or otherwise disputes the Closingamount of Taxes for which Purchaser or Holdings is liable under this Agreement, Bancorp Seller shall, promptly upon receiving notice thereof, inform Holdings. Holdings shall promptly notify Shareholders in writing of have the commencement of right to control any Tax audit resulting proceedings and to determine whether and when to settle any such claim, assessment or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichdispute, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (but only to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by proceedings affect the amount of Taxes for which Holdings is liable under this Agreement; provided that Holdings shall consult in good faith with Seller regarding any audits of Holdings' and the United States Purchased Entities's Tax Returns to the extent such detriment.
audits would reasonably be expected to affect Taxes for which Seller is liable under this Agreement; provided further, that, without the prior written consent of Seller (csuch consent not to be unreasonably withheld), (A) Shareholders may elect to directneither Holdings nor any of its Affiliates shall, through counsel of their own choosing and at their own expenseunless otherwise required by Law, take any audit, claim for refund and administrative position on any Tax Return or judicial proceeding involving in any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund contest or proceeding relating to an asserted Taxes after the Closing Date not in accordance with past custom and practice that materially adversely affects the Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.United States
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp the Purchaser shall promptly notify Shareholders the Seller in writing of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp the Purchaser, its Affiliates, the Company or ▇▇▇▇▇ any Subsidiary which, if determined adversely to the taxpayer or after the lapse of time would time, could be grounds for indemnification by the Seller under Section 8.01(a)7.01. Such notice shall contain factual information (to the extent known to Bancorp the Purchaser, its Affiliates, the Company or ▇▇▇▇▇any Subsidiary) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority taxing authority in respect of any such asserted Tax liability. If Bancorp the Purchaser fails to give Shareholders the Seller prompt notice of an asserted Tax liability as required by this Section 8.05(b)7.03, then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders Seller shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such only to the extent that failure to give prompt such notice results in a detriment to Shareholdersthe Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a "Contest") that relates to taxable periods ending on or before the date of the Closing, then the Seller shall have the sole right, at its expense, to control the conduct of such Contest, provided that, with respect to Contests that relate solely to the Company and the Subsidiaries, the Seller may not settle or compromise any amount which Shareholders are otherwise required to pay Bancorp asserted liability that would materially adversely affect the liability for Taxes of the Purchaser pursuant to Section 8.01(a7.01(a) with respect to such liability without the prior written consent of the Purchaser, which consent shall not be reduced by the amount of such detrimentunreasonably withheld.
(c) Shareholders With respect to Straddle Periods, the Seller may elect to directdirect and control, through counsel of their its own choosing and at their own expensechoosing, any audit, claim for refund and administrative or judicial proceeding Contest involving any asserted Tax liability with respect to which indemnity may be sought under from the Seller pursuant to Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest")7.01. If Shareholders elect the Seller elects to direct a Contest, the Contest of an asserted Tax liability, they shall, Seller shall within thirty (30) 90 calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before notify the due date Purchaser of any protest or other claim in respect thereof), notify Bancorp of their its intent to do so so, and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp the Purchaser shall cooperate and shall cause ▇▇▇▇▇ the Company and the Subsidiaries to cooperate fully cooperate, at the Seller's expense, in each phase of such Contest. If Shareholders choose to direct ; provided, that the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as Purchaser may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, participate at their its own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall and, provided, further, that the Seller may not settle or compromise any asserted liability over that would adversely affect the objection liability for Taxes of Shareholdersthe Purchaser pursuant to Section 7.01(a) without the prior written consent of Purchaser, which consent shall not be unreasonably withheld. If Shareholders elect the Seller elects not to direct the Contest, the Purchaser, the Company or any Subsidiary may assume control of such Contest and fail (at the Purchaser's own expense). However, in such case, none of the Purchaser, the Company or any Subsidiary may settle or compromise any asserted liability without prior written consent of the Seller; provided, however, that consent to provide such acknowledgmentsettlement or compromise shall not be unreasonably withheld. In any event, then (x) Shareholders shall have no right to participate the Seller may participate, at its own expense, in the Contest Contest.
(d) The Purchaser and (y) Bancorp the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, in the defense against or ▇▇▇▇▇ may pay, compromise or contest such asserted liability of any claim in their sole discretionany Contest.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp Purchaser shall promptly notify Shareholders Sellers in writing of the commencement any written notice of any Tax a proposed assessment or claim in an audit or administrative or judicial proceeding of Purchaser or of any demand or claim on Bancorp or ▇▇▇▇▇ the Company which, if determined adversely to the taxpayer or after the lapse of time taxpayer, would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b)ARTICLE IX; PROVIDED, then (i) if Shareholders are precluded by HOWEVER, that the failure to give prompt such notice will not affect Purchaser's right to indemnification under this ARTICLE IX except to the extent, if any, that Purchaser's failure to so notify Sellers precludes Sellers from contesting the asserted Tax in question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, PROVIDED that Sellers acknowledge in writing their liability in both under this Agreement to hold Purchaser and the administrative and judicial forums, then Shareholders shall not have Company harmless against the full amount of any obligation to indemnify for any loss arising out adjustment which may be made as a result of such asserted Tax liabilityaudit or proceeding and, PROVIDED FURTHER, that such audit or proceeding relates only to Taxes for which Sellers are liable, Sellers shall have the right at their expense to participate in and control the conduct of such audit or proceeding; Purchaser also may participate in any such audit or proceeding and, if Sellers do not assume the defense of any such audit or proceeding or if Sellers assume such defense but do not diligently conduct such contest, Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after five (5) Business Days prior written notice to Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which Sellers have acknowledged their liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which Purchaser would be liable, Purchaser shall have the right, at its expense, to control the audit proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both Sellers (as evidenced by their acknowledgement under SECTION 9.04) and Purchaser or the Company could be liable, (i) each party may participate in the audit or proceedings, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results the audit or proceedings shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in a detriment to Shareholders, then the immediately preceding sentence shall govern also for purposes of deciding any amount issue that must be decided jointly (including choice of judicial forum) in situations in which Shareholders separate issues are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced controlled under this ARTICLE IX by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing Purchaser and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)Sellers.
(d) If Shareholders elect Neither Purchaser nor Sellers shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of the other party, which consent may not be unreasonably withheld or delayed. Purchaser and Sellers shall cooperate, and Purchaser shall cause the Company to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expensecooperate, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle defense against or compromise of any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate claim in the Contest and (y) Bancorp any audit or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionproceeding.
Appears in 1 contract
Sources: Purchase Agreement (Viewpoint Corp)
Contests. Notwithstanding anything to the contrary contained in this Agreement:
(a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after After the Closing Date.
(b) After the Closing, Bancorp Purchaser shall promptly notify Shareholders Seller in writing within ten (10) days of the commencement of date a claim is made or threatened in writing by any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichTaxing Authority that, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification successful, may reasonably result in an indemnity payment by Seller under Section 8.01(a10.4 (a "Tax Claim"). Such notice shall contain factual information (describing in reasonable detail the nature and basis of such claim and the amount thereof, to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail known, and shall include copies of any notice or other document received from any Tax Taxing Authority in respect of any such asserted Tax liability. If Bancorp fails Failure by Purchaser to give Shareholders prompt such notice to the Seller shall not relieve the Seller of an asserted any liability that it may have on account of its indemnification obligation under this Article X, except to the extent that the Seller is materially and adversely prejudiced thereby in the defense of such Tax Claim; provided, however, that irrespective of whether the Seller is materially or adversely prejudiced, Seller shall be permitted to reduce any liability as it may have on account of its indemnification obligation under this Article X by the amount of Seller's actual, out-of-pocket monetary damages that are caused by the Purchaser's failure to timely give the notice required by pursuant to this Section 8.05(b10.7(a).
(b) Seller will have the right, at its option, upon timely notice to Purchaser, to assume at its own expense control of any audit or other defense of any Tax Claim (other than a Tax Claim relating solely to Taxes of RSUI for a Straddle Period, which as described below, the parties shall jointly control) with its own counsel, provided that Seller's notice acknowledges Seller's indemnification liability for such claim. Seller's right to control a Tax Claim will be limited to issues in respect of which amounts in dispute would be paid by Seller or for which Seller would be liable pursuant to Section 10.4. Costs of defending or contesting such Tax Claims are to be borne by Seller unless the Tax Claim relates to a Straddle Period, in which event such costs shall be fairly apportioned as described below. Purchaser and RSUI at their own expense each shall cooperate with Seller in contesting any Tax Claim, which cooperation shall include the retention and, upon Seller's request, the provision of records and information that are reasonably relevant to such Tax Claim and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder. Notwithstanding the foregoing, Seller shall neither consent nor agree to the settlement of any Tax Claim with respect to any liability for Taxes that may affect the liability for any state, federal or foreign income tax of RSUI or any affiliated group (as defined in section 1504(a) of the Code) of which RSUI is a member for any Post-Closing Tax Period without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed, and neither Seller, nor any Affiliate of Seller, shall file an amended Tax Return that may increase the liability for Taxes of RSUI for any Post-Closing Tax Period without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed. Purchaser and Seller shall jointly control all proceedings taken in connection with any Tax Claims relating solely to a Straddle Period of RSUI and each party shall bear its own out-of-pocket costs and expenses of the contest and all joint costs and expenses of the contest shall be borne in the same ratio as the applicable proposed Tax would be allocated. For purposes of this Section 10.7(b), then when applying the definitions of "Pre-Closing Tax Period," "Post-Closing Tax Period," "Straddle Period," or "Closing Date," (i) if Shareholders are precluded by with reference to Tax Claims involving federal Income Taxes, the failure term "Closing Date" as used in such definitions shall be deemed to give prompt notice from contesting be the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liabilityClosing Date, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to Tax Claims involving all other Taxes, the term "Closing Date" as used in such liability definitions shall be reduced by the amount of such detrimentdeemed to be June 30, 2003.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after After the Closing Date.
(b) After the Closing, Bancorp Buyer shall promptly notify Shareholders Seller in writing of any proposed assessment, the commencement of any Tax audit or administrative or judicial proceeding court proceedings or of any demand or claim on Bancorp or ▇▇▇▇▇ a Tax Indemnitee which, if determined adversely to the taxpayer or after the lapse of time time, would be grounds for indemnification by Seller under Section 8.01(a10.3 (each such assessment, audit, court proceeding, demand or claim, a “Contest”); provided that the failure so to notify Seller shall not relieve Seller of any liability that it may have to the Tax Indemnitee hereunder, except to the extent that Seller demonstrates that it is actually prejudiced thereby. Such notice (a “Tax Claim”) shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇Buyer) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority taxing authority in respect of any such asserted Tax liability. If Bancorp fails .
(b) In the case of any Contest that relates to give Shareholders prompt notice a taxable period ending on or prior to the Closing Date, Seller shall have the right, at its expense and through counsel of an asserted Tax liability as required by this Section 8.05(b)its own choosing, then to control the conduct of such Contest; provided that (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall Seller does not have any dispute its obligation to indemnify the Tax Indemnitees for any loss arising out of such the asserted Tax liability, and (ii) if Shareholders are Seller shall consult with the Buyer regarding any such Contest and shall allow Buyer to participate in any such proceeding and (iii) no settlement or other disposition of any claim for Tax which would adversely affect any Tax Indemnitee in any taxable period ending after the Closing Date in any manner or to any extent (including, but not so precluded limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments and the reduction of loss or credit carryovers) shall be agreed to without Buyer’s prior written consent, such consent not to be unreasonably withheld or delayed, unless Buyer agrees to indemnify the Seller for any increase in Taxes resulting from contesting but such a failure to give prompt notice results in a detriment provide consent. If Seller elects not to Shareholdersdirect the Contest, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to Buyer or the Company may pay, compromise, or contest such liability shall be reduced by the amount of such detrimentasserted liability.
(c) Shareholders may elect In the case of a Contest that relates to directa taxable period beginning before the Closing Date and ending after the Closing Date, Buyer shall have the right, at its expense and through counsel of their its own choosing choosing, to control the conduct of such Contest; provided that (i) Buyer shall consult with Seller regarding any such Contest and at their own expense, shall allow Seller to participate in any audit, such proceeding and (ii) no settlement or other disposition of any claim for refund and administrative Taxes which would adversely affect Seller in such taxable periods or judicial proceeding involving subsequent taxable periods shall be agreed to without Seller’s prior written consent, such consent not to be unreasonably withheld or delayed, unless Seller agrees to indemnify the Buyer for any asserted liability increase in Taxes resulting from a failure to provide consent. Except as provided above, the Buyer shall have the right to control the conduct of any Contest in its sole discretion with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted other Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a)matter.
(d) If Shareholders elect not Seller, Buyer and the Company agree to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, cooperate in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle defense against or compromise of any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionContest.
Appears in 1 contract
Contests. (aIf any claim or demand for Taxes in respect of which indemnity may be sought pursuant to Section 5.5(c) Shareholders will allow ▇▇▇▇▇ and hereof is asserted in writing against Buyer, any of its counsel to participate at its own expense in any audits Affiliates or, effective upon the Closing, the Company or the Subsidiary, or if a written notice of audit by a Tax authority of a consolidatedTax period of the Company or the Subsidiary ending on or before the Closing Date is received by Buyer, combined any of its Affiliates or, effective upon the Closing, the Company or unitary Tax Return the Subsidiary, Buyer shall notify the Shareholders’ Representative of an Affiliated Group such claim, demand or notice within ten (10) days of which ▇▇▇▇▇ was a member receipt thereof and shall give the Shareholders’ Representative such information with respect thereto as the Shareholders’ Representative may reasonably request; provided, however, that failure by Buyer to comply with these provisions shall not affect the rights to indemnification hereunder of Buyer, any of its Affiliates, the Company or the Subsidiary except to the extent that such Returns relate failure materially impairs the ability of the Shareholders’ Representative to ▇▇▇▇▇contest such tax liabilities. Shareholders will not settle The Sellers may discharge, at any time, their indemnification obligation under Section 5.5(c) hereof by paying Buyer the amount payable pursuant to Section 5.5(c) hereof, calculated on the date of such payment. The Shareholders’ Representative may, at Sellers’ own expense, participate in the defense of any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in claim, suit, action, litigation or proceeding (including any Tax audit). In the case of a Person any claim or demand for Taxes that owned ▇▇▇▇▇ both before and affects the liability of neither the Company nor the Subsidiary for Taxes for any tax period ending after the Closing Date.
(b) After , the ClosingShareholders’ Representative may, Bancorp shall promptly notify Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ which, if determined adversely upon notice to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Bancorp fails to give Shareholders prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing Buyer and at their Sellers’ own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any assume the defense of such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest")proceeding. If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of Shareholders’ Representative assumes such defense Buyer shall have the notice of asserted Tax liability right (but not less than five (5the duty) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest defense thereof and (y) Bancorp to employ counsel, at its own expense, separate from the counsel employed by the Shareholders’ Representative. Whether or ▇▇▇▇▇ may paynot the Shareholders’ Representative chooses to defend or prosecute any claim, compromise all parties hereto shall cooperate in the defense or contest such asserted liability in their sole discretionprosecution thereof.
Appears in 1 contract
Contests. (a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after the Closing Date.
(b) After the Closing, Bancorp The Buyer shall promptly notify Shareholders the Sellers' Representative in writing of the commencement any written notice of any Tax a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or of any demand or claim on Bancorp or ▇▇▇▇▇ Subsidiary which, if determined adversely to the taxpayer or after the lapse of time taxpayer, would be grounds for indemnification under this Section 8.01(a). Such 6.4; PROVIDED, HOWEVER, that a failure to give such notice shall contain factual information (will not affect the Buyer's right to indemnification hereunder, except to the extent known to Bancorp or ▇▇▇▇▇) describing extent, if any, that, but for such failure, the asserted Sellers' Representative could have avoided the Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liabilityquestion. If Bancorp fails to give Shareholders prompt notice In the case of an asserted Tax liability as audit or administrative or judicial proceeding that relates to any Pre-Closing Period, PROVIDED that within 30 days after the Sellers' Representative receives the written notice from the Buyer required by under this Section 8.05(b), then (i6.4(d) if Shareholders are precluded by the failure and prior to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders shall not have taking any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholders, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) action with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and audit or administrative or judicial proceeding involving proceeding, the Sellers' Representative acknowledges in writing the Sellers' liability under this Section 6.4 to hold the Buyer and the Company harmless against the full amount of any asserted liability with respect to adjustment which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively made as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase result of such Contest. If Shareholders choose audit or proceeding, the Sellers' Representative shall have the right at his, her or its own expense to direct control the Contestconduct of such audit or proceeding; PROVIDED, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate to represent Bancorp or ▇▇▇▇▇ in HOWEVER, that the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under Section 8.01(a).
(d) If Shareholders elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, at their own expense, in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ Sellers' Representative shall not settle or otherwise compromise any asserted issue or matter without the Buyer's prior written consent if such issue or matter will have a material effect on the Tax liability over of the objection Buyer or the Company or any Subsidiary for a post-Closing taxable year or period. The Buyer also may participate in any such audit or proceeding at its own expense and, if the Sellers' Representative does not assume the defense of Shareholders. If Shareholders elect not any such audit or proceeding, the Buyer may, without any effect to direct its or the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no Company's right to participate indemnification under this Section 6.4, defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding. Except as provided otherwise in this Section 6.4(d), the Contest Buyer shall control at its own expense any and (y) Bancorp all audit, administrative and judicial proceedings related to the Company, the Subsidiaries or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionTaxes.
Appears in 1 contract
Sources: Share Purchase Agreement (Russell-Stanley Holdings Inc)
Contests. Notwithstanding anything to the contrary contained in this Agreement:
(a) Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which ▇▇▇▇▇ was a member to the extent that such Returns relate to ▇▇▇▇▇. Shareholders will not settle any such audit in a manner which would adversely affect ▇▇▇▇▇ after the Closing Date unless such settlement would be reasonable in the case of a Person that owned ▇▇▇▇▇ both before and after After the Closing Date.
(b) After the Closing, Bancorp Purchaser shall promptly notify Shareholders Seller in writing within ten (10) days of the commencement of date a claim is made or threatened in writing by any Tax audit or administrative or judicial proceeding or of any demand or claim on Bancorp or ▇▇▇▇▇ whichTaxing Authority that, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification successful, may reasonably result in an indemnity payment by Seller under Section 8.01(a6.4 (a "Tax Claim"). Such notice shall contain factual information (describing in reasonable detail the nature and basis of such claim and the amount thereof, to the extent known to Bancorp or ▇▇▇▇▇) describing the asserted Tax liability in reasonable detail known, and shall include copies of any notice or other document received from any Tax Taxing Authority in respect of any such asserted Tax liability. If Bancorp fails Failure by Purchaser to give Shareholders prompt such notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Shareholders are precluded by to the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Shareholders Seller shall not relieve the Seller of any liability that it may have any on account of its indemnification obligation under this Article VI, except to indemnify for any loss arising out the extent that Seller is materially and adversely prejudiced thereby in the defense of such asserted Tax liabilityClaim; provided, and (ii) if Shareholders are not so precluded from contesting but such failure to give prompt notice results in a detriment to Shareholdershowever, then any amount which Shareholders are otherwise required to pay Bancorp pursuant to Section 8.01(a) with respect to such liability that irrespective of whether the Seller is materially or adversely prejudiced, Seller shall be reduced permitted to reduce any liability Seller may have on account of its indemnification obligation under this Article VI by the amount of such detriment.
(c) Shareholders may elect to directits actual, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If Shareholders elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify Bancorp of their intent to do so and acknowledge in writing, in form and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperate and shall cause ▇▇▇▇▇ to cooperate in each phase of such Contest. If Shareholders choose to direct the Contest, Bancorp shall promptly empower and shall cause ▇▇▇▇▇ promptly to empower (by powerout-of-attorney and such other documentation as may be appropriate) such representatives of Shareholders as they may designate pocket monetary damages that are caused by the Purchaser's failure to represent Bancorp or ▇▇▇▇▇ in timely give the Contest insofar as the Contest involves an asserted Tax liability for which Shareholders would be liable under notice required pursuant to this Section 8.01(a6.7(a).
(db) If Shareholders elect not Seller will have the right, at its option, upon timely notice to direct Purchaser, to assume at its own expense control of any audit or other defense of any Tax Claim (other than a Tax Claim relating solely to Taxes of RSA SLISI for a Straddle Period, which as described below, the Contest and acknowledge parties shall jointly control) with its own counsel, provided that Seller's notice acknowledges Seller's indemnification liability for such claim. Seller's right to control a Tax Claim will be limited to issues in writingrespect of which amounts in dispute would be paid by Seller or for which Seller would be liable pursuant to Section 6.4. Costs of defending or contesting such Tax Claims are to be borne by Seller unless the Tax Claim relates to a Straddle Period, in form which event such costs shall be fairly apportioned as described below. Purchaser and substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor, then (i) Shareholders may participate, RSA SLISI at their own expenseexpense each shall cooperate with Seller in contesting any Tax Claim, which cooperation shall include the retention and, upon Seller's request, the provision of records and information that are reasonably relevant to such Tax Claim and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder. Notwithstanding the foregoing, Seller shall neither consent nor agree to the settlement of any Tax Claim with respect to any liability for Taxes that may affect the liability for any state, federal or foreign income tax of RSA SLISI or any affiliated group (as defined in section 1504(a) of the Code) of which RSA SLISI is a member for any Post-Closing Tax Period without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed, and neither Seller, nor any Affiliate of Seller, shall file an amended Tax Return that may increase the liability for Taxes of RSA SLISI for any Post-Closing Tax Period without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed. Purchaser and Seller shall jointly control all proceedings taken in connection with any Tax Claims relating solely to a Straddle Period of RSA SLISI and each party shall bear its own out-of-pocket costs and expenses of the contest and all joint costs and expenses of the contest shall be borne in the Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise any asserted liability over same ratio as the objection of Shareholders. If Shareholders elect not to direct the Contest and fail to provide such acknowledgment, then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such asserted liability in their sole discretionapplicable proposed Tax would be allocated.
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