Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”). (b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability. (c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Sources: Securities and Asset Purchase Agreement (Easylink Services International Corp), Securities and Asset Purchase Agreement (Premiere Global Services, Inc.)
Contests. (a) Upon receipt by BuyerAfter the Closing Date, Buyers shall notify Sellers in writing within ten (10) days of receiving notice of a proposed assessment or the commencement of any Acquired Company Tax audit or administrative or judicial Proceeding or of any demand or claim on Buyers or the Cinemex Companies or Symphony, which, if determined adversely to such party or after the lapse of time, could have an adverse effect on Sellers. Such notice shall contain factual information (to the extent known to Buyers and the Cinemex Companies or Symphony or any Affiliate thereof Related Person of a written notice such party) briefly describing the asserted Tax liability and shall include copies of any pending notice or threatened other document received from any Taxing Authority in respect of any such asserted Tax audits, examinations, protest proceedings, assessments or claims that could give rise liability. The failure of Buyers to a claim for indemnity provide Sellers such notice shall not release Sellers from their obligations under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof this Agreement except to Parent (the “Tax Claim Notice”)extent Sellers have been materially prejudiced by the failure to receive such notice.
(b) Subject Except as provided below, in the case of a Tax audit or administrative or judicial Proceeding (a “Contest”) that relates to Section 6.06(c)Taxable Periods ending on or prior to the Closing Date or to any Straddle Period pursuant to which Contest Sellers could be liable for indemnification or could be entitled to a Tax refund from a Taxing Authority pursuant to this Agreement, Sellers may elect to controlshall have the right, through their Representatives, and at their expense, to participate in or, at the option of Buyers, control the conduct of such Contest; provided that, even if Buyers opt to permit Sellers to control the conduct of such Contest, Sellers (i) shall permit Buyers to participate in the Proceeding and to monitor the progress of such Proceeding, and (ii) if such settlement or compromise would have an adverse effect on the Cinemex Companies, Symphony or contestBuyers, either administratively individually or in the courtsaggregate, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, settle or otherwise compromise or abandon any matter related to Indemnifiable Tax Liability such Proceeding without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate Buyers (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned). Notwithstanding the foregoing, Sellers shall not have the right to control any Contest pursuant to which Sellers would reasonably be expected to be entitled to a Tax refund if the outcome of such contest could have an adverse effect on the Cinemex Companies, Symphony, or Buyers, individually or in the aggregate. In the case of a Contest that relates to the income tax returns of any of the Cinemex Companies or Symphony (an “Income Tax Contest”) that relates to Taxable Periods ending on or prior to the Closing Date, pursuant to which Contest Sellers could be liable for indemnification or could be entitled to a Tax refund from a Taxing Authority pursuant to this Agreement, Sellers shall have the right, at their expense, to control the conduct of such Income Tax Contest, and, pursuant to Section 11.4, Buyers will cause Cinemex Companies to provide Sellers with reasonable assistance and access to the books and records of such Cinemex Company or Symphony as it relates to the Income Tax Contest, provided that Sellers (i) shall permit Buyers to participate in the Income Tax Contest and to monitor the progress of such Contest and (ii) if such settlement or compromise would have an adverse effect on the Cinemex Companies, Symphony or Buyers, individually or in the aggregate, shall not settle or otherwise compromise such Income Tax Contest without the prior written consent of Buyers (which consent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding the foregoing, Sellers shall not be entitled to control any Contest if such Contest, alone or in conjunction with other Contests, could reasonably be expected to result in Losses that exceed the Tax Loss Cap. Any Tax adjustment (including restatement by inflation, surcharges, penalties and fines) assessed as a consequence of the conclusion of a Tax audit or administrative or judicial proceeding or of any demand or claim on Buyers or the Cinemex Companies corresponding to a taxable period that (A) ends on or before the Closing Date or (B) is allocable to the portion of such Straddle Period ending on and including the Closing Date, (x) shall be paid by Sellers to Buyers if the Tax adjustment requires payment of additional Taxes, subject to the limitations set forth in Section 8.5 as if such additional Taxes were Losses subject to indemnification under Section 8.4(i) and (y) shall be paid by or at the direction of Buyers to Sellers if the Tax adjustment results in a credit or refund of Taxes.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Amc Entertainment Inc), Stock Purchase Agreement (Marquee Holdings Inc.)
Contests. (a) Upon receipt by BuyerAfter the Closing, Purchaser shall promptly notify the Sellers Representative in writing of the proposed assessment or the commencement of any Acquired Tax audit or administrative or judicial proceeding or of any demand or claim on Purchaser, its Affiliates, or the Company or any Affiliate thereof Company Subsidiary which, if determined adversely to the taxpayer or after the lapse of a written time, could result in any Tax liability for the Sellers or be grounds for indemnification by the Sellers under ARTICLE IX. Such notice shall contain factual information (to the extent known to Purchaser, its Affiliates, or the Company) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability. If Purchaser fails to give the Sellers Representative prompt notice of an asserted Tax liability as required by this Section 7.03, then the Sellers shall not have any pending or threatened obligation to indemnify for any loss arising out of such asserted Tax auditsliability, examinations, protest proceedings, assessments or claims but only to the extent that could failure to give rise such notice results in a detriment to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”)Sellers.
(b) Subject In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Posta Pre-Closing Tax Period, Purchaser shall have the sole right (at Seller’s expense) to control the conduct of such Contest. Purchaser shall notify Sellers Representative of any Contest, and shall not settlekeep Sellers Representative reasonably informed of the progress of such Contest, including by providing Sellers Representative copies of any material correspondence with the taxing authority. However, in such case, none of Purchaser or the Company may settle or compromise or abandon any matter related asserted liability that Sellers may be obligated to Indemnifiable Tax Liability indemnify without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If the Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired CompanyRepresentative; provided, however, that consent to settlement or compromise shall not be unreasonably withheld.
(ic) Buyer With respect to Straddle Periods, Purchaser shall consult direct and control, through counsel of its own choosing, any Contest involving any asserted Tax liability. If the asserted Tax liability is one with respect to which indemnity may be sought from the Sellers before taking any significant action pursuant to ARTICLE IX, the Sellers Representative may participate (at the Sellers’ expense) in connection with such Tax proceedingContest, and (ii) Buyer shall not settle, neither Purchaser nor the Company may settle or compromise or abandon any such Tax Proceeding asserted liability without obtaining the prior written consent of the SellersSellers Representative, which consent shall not be unreasonably withheld.
(d) Purchaser, conditioned the Sellers Representative and the Sellers agree to cooperate, and Purchaser agrees to cause the Company and the Company Subsidiaries to cooperate, in the defense against or delayedcompromise of any claim in any Contest.
Appears in 2 contracts
Sources: Stock Purchase Agreement (PAE Inc), Stock Purchase Agreement (PAE Inc)
Contests. (a) Upon receipt by BuyerAfter the Merger Effective Time, the Purchaser shall promptly notify 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 the Purchaser, its Affiliates, the Company, any Acquired Company Subsidiary or any Affiliate thereof Joint Venture which, if determined adversely to the taxpayer or after the lapse of a written time, could be grounds for indemnification by the Seller under Section 7.01. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture) describing the asserted Tax Liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax Liability. Any failure by the Purchaser to give the Seller prompt notice of an asserted Tax Liability as required by this Section 7.03, shall not limit the obligation of the Seller to indemnify the Purchaser, the Company, any pending Subsidiary or threatened any Joint Venture for such Tax audits, examinations, protest proceedings, assessments or claims Liability unless and only to the extent that could give rise such failure resulted in an economic detriment to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”)Seller.
(b) Subject In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to Section 6.06(c)taxable periods ending on or before the date of the Merger, Sellers the Seller shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, such Contest.
(c) With respect to Straddle Periods, the Seller may elect to direct and control, through their Representativescounsel of its own choosing, and at their expenseany Contest involving any asserted Tax Liability with respect to which indemnity may be sought from the Seller pursuant to Section 7.01. If the Seller elects to direct a Contest, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they Seller shall within thirty (30) Business Days days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requires) notify Buyer the Purchaser of their its intent to do so, and Buyer the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the sole expense of SellersSeller’s expense, in each phase of such Contest. If the defense againstSeller elects not to direct the Contest, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers Seller shall promptly notify Buyer the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in writing after it settleseach phase of such Contest. Neither the Purchaser, compromises the Company, any Subsidiary or abandons any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or agree to settle any claim of matters related pursuant to Indemnifiable Tax Liability, and with respect to any such claim that could audit or proceeding which would adversely affect an Acquired Company, Buyer the other party for such taxable period or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability a subsequent taxable period without obtaining the prior written consent of Buyerthe other party, which consent shall may not be unreasonably conditionedwithheld. In any such Contest, withheld or delayedthe costs and expenses of the party assuming control of such Contest shall be paid first from any recovery before any payments are made to either party. If Sellers elect not to represent the interests of an Acquired Company, Buyer The Purchaser may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlparticipate, at its own expense, in any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action Contest in connection with such Tax proceedingwhich the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(iid) Buyer shall not settleThe Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, in the defense against or compromise or abandon of any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayedclaim in any Contest.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (PNA Group Holding CORP)
Contests. (a) Upon receipt by Buyer, any Acquired Company The Buyer will notify the Seller Representative in writing of the proposed assessment or any Affiliate thereof of a written notice the commencement of any pending Tax audit or threatened Tax auditsadministrative or judicial Proceeding or of any demand or Claim on the Buyer and its Affiliates or the Seller that, examinationsif determined adversely to the taxpayer after the lapse of time, protest proceedings, assessments or claims that could give rise to a claim be grounds for indemnity indemnification by the Seller under Section 6.03 8.1, provided that the failure to provide notice will not affect any rights under this Agreement, except to the extent the failure prejudices the Indemnifying Party. The Buyer’s notice will contain factual information (an “Indemnifiable to the extent known to the Buyer and its Affiliates) briefly describing the asserted Tax Liability”), Buyer shall promptly give written liability and will include copies of any notice thereof to Parent (the “or other document received from any Taxing Authority in respect of any such asserted Tax Claim Notice”)liability.
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at The Seller Representative will have the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permittedright, at its expense, to be represented at each conferencecontrol the conduct of, hearing a Tax audit or meeting with representatives of administrative or judicial Proceeding (a “Contest”) that relates to Taxable Periods ending before the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settlesClosing Date; provided that, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to if any such claim Proceeding would result in an adjustment to Tax that could adversely affect would have an Acquired Company, adverse effect on the Buyer or any of their respective affiliates with respect its Affiliates for a period ending after the Closing Date, the Seller Representative (i) will permit the Buyer to any Post-Closing Tax Periodparticipate in the Proceeding, Sellers shall and (ii) will not settle, settle or otherwise compromise or abandon any matter related to Indemnifiable Tax Liability the Proceeding without obtaining the Buyer’s prior written consent of Buyerconsent, which consent shall will not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liabilitywithheld.
(c) Buyer shall controlThe Seller Representative may elect to participate, at its own expense, in any Contest involving any asserted Tax proceeding liability for a Straddle Period Taxes with respect to which indemnity may be sought from the Seller pursuant to Section 8.1.
(d) The Buyer will not take any Acquired Company; provided, however, position or agree to any settlement in a Contest that (i) would result in liability of the Seller or an indemnity Claim by the Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) or the Buyer shall not settle, compromise or abandon any such Tax Proceeding Sub against the Seller without obtaining the Seller Representative’s prior written consent of the Sellersconsent, which consent shall will not be unreasonably withheld, conditioned or delayedexcept as follows:
(i) the Buyer will notify the Seller Representative in writing (when practical) of the Buyer’s intent to take any such position in a Contest, and include with the notice a description of the Buyer’s position and its rationale for doing so;
(ii) if within 10 days after the Buyer gives its notice, the Seller Representative gives the Buyer written notice objecting to its position, then the Parties will meet, together with their respective attorney(s) and/or accountant(s), as promptly as feasible, and attempt to agree on a position and/or strategy for the Buyer to take in the matter;
(iii) if the Parties are unable to agree on a position and/or strategy, then either Party may refer the matter to the Appointed Arbiter to review their respective positions and to provide their arguments in support of the positions;
(iv) if the Appointed Arbiter determines that there is substantial authority within the meaning of Treasury Regulations Section 1.6662-4(d)(2) for the position asserted by the Seller Representative, then the Buyer will proceed with such position in the Contest;
(v) alternatively, if the Appointed Arbiter determines that there is no substantial authority for the position asserted by the Seller Representative, then the Buyer may proceed with the Contest taking the position the Appointed Arbiter recommends as being feasible, with a substantial authority basis that is favorable to the Buyer;
(vi) the Buyer will, upon the Seller Representative’s request, appeal a determination in a Contest (at the Seller Representative’s sole cost and expense, which the Seller Representative will pay directly and not from the Escrow Amount); provided, the Buyer need only assert positions that the Appointed Arbiter determines have substantial authority within the meaning of Treasury Regulations Section 1.6662-4(d)(2); and
(vii) the Buyer will pay one-half of the fees, costs and expenses of the Appointed Arbiter and the Seller Representative will pay the other one-half, except as provided in Section 8.5(d)(vi).
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Avon Products Inc)
Contests. (a) Upon receipt by BuyerAfter the Closing Date, the Acquirors shall promptly notify THCI in writing of the commencement of any Acquired Company Tax audit or administrative or judicial proceeding or of any demand or claim on the Acquirors or any Affiliate thereof of a written their respective Affiliates which, if determined adversely to the taxpayer or after the lapse of time, would be grounds for indemnification under Section 7.06. Such notice shall contain factual information (to the extent known to the Acquirors or the relevant Affiliate) 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 the Acquirors fail to give THCI prompt notice of an asserted Tax liability as required by this Section 7.07 and if THCI is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then THCI shall not have any pending or threatened obligation to indemnify for any loss arising out of such asserted Tax audits, examinations, protest proceedings, assessments or claims liability to the extent that could give rise to THCI was prejudiced as a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”)result of such failure.
(b) Subject to Section 6.06(c), Sellers THCI may elect to controldirect, through their Representatives, counsel of 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 7.06 relating to any taxable period ending on or before the compromise Closing Date (any such audit, claim for refund or contest, either administratively or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability is referred to herein as a "CONTEST"). If Sellers elect THCI elects to so represent the interests of an Acquired Company or Buyerdirect a Contest, they it shall within thirty (30) Business Days 30 calendar days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requires) liability notify Buyer the Acquirors in writing of their its intent to do so, and Buyer the Acquirors shall cooperate and shall cause their respective Affiliates or their respective successors to cooperate, at the sole expense of SellersTHCI's expense, in each phase of such Contest. In each such case, neither the defense against, Acquirors nor any of their respective Affiliates may settle or compromise any asserted Tax liability over the objection of THCI. If THCI elects not to direct the Contest or settlement offails to notify the Acquiror of its election as herein provided, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer Acquirors or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Affiliates may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlcontest, at its their own expense, any such asserted Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with liability or pay or compromise such asserted Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayedliability at THCI's expense.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Westfield America Inc), Asset Purchase Agreement (Rouse Company)
Contests. (a) Upon Purchaser shall promptly notify Seller in writing upon receipt by Buyer, any Acquired Purchaser or the Subject Company or any Affiliate thereof of a written notice of any pending or threatened Tax auditsfederal, examinationsstate, protest proceedings, local or foreign income or franchise tax audits or assessments or claims that could give rise which may materially affect the tax liabilities of the Subject Company for which Seller would be required to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject indemnify Purchaser pursuant to Section 6.06(c5.4(a), Sellers may elect . Seller shall have the sole right to control, through their Representativesrepresent the Subject Company's interests in any tax audit or administrative or court proceeding relating to taxable periods ending on or before the Closing Date, and to employ counsel of its choice at their its own expense, the compromise or contest. Seller shall not be entitled to settle, either administratively or in after the courts, commencement of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement oflitigation, any claim in any such proceeding. In for Taxes that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could would materially adversely affect an Acquired Company, Buyer the liability for Taxes of Purchaser or the Subject Company for any of their respective affiliates with respect to any Post-period after the Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability Date without obtaining the prior written consent of Buyer, which Purchaser; provided that such consent shall not be unreasonably conditioned, withheld or delayeddelayed and shall not be necessary to the extent that Seller has indemnified Purchaser against the effect of any such settlement. If Sellers elect not Seller shall be entitled to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlparticipate, at its own expense, in the defense of any claim for Taxes for a year or period that includes and ends after the Closing Date that may be the subject of indemnification by Seller pursuant to Section 5.4(a) and, with the written consent of Purchaser (which shall not be unreasonably withheld or delayed), and at its sole expense, may assume the entire defense of such tax claim. Neither Purchaser nor the Subject Company may agree to settle any Tax proceeding claim for a Straddle Period with respect the portion of the year or period ending prior to any Acquired Company; provided, however, that (ior on the Closing Date which may be the subject of indemnification by Seller under Section 5.4(a) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which Seller; provided that such consent shall not be unreasonably withheld, conditioned withheld or delayed.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Lady Luck Gaming Corp), Stock Purchase Agreement (Sodak Gaming Inc)
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”)After the Closing Date, Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise notify Seller or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers Seller shall promptly notify Buyer in writing after it settles, compromises of any written notice of a proposed assessment or abandons any claim in a Tax Contest of matters related or relating to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not Seller or the Transferred Companies which, if determined adversely to the taxpayer, would be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable grounds for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Companyindemnification under this Article X; provided, however, that a failure to give such notice will not affect the rights of a party to indemnification under this Agreement except to the extent, if any, that such failure materially prejudices the other party.
(b) In the case of a Tax Contest that (i) relates to periods ending on or before the Closing Date or (ii) relates to a liability for Taxes for which Seller could have to indemnify Buyer or the Transferred Companies pursuant to this Agreement, Seller shall have the right to control the conduct of such Tax Contest; provided that Buyer shall consult with Sellers before taking any significant action have the right to participate in connection all such Tax Contests that are reasonably likely to result in an adverse material effect to Buyer or the Transferred Companies. If, following the delivery of a notice specified in Section 10.4(a) by Buyer on Seller, Seller does not elect to conduct a Tax Contest described in clause (i) or (ii) above (or ceases to actively conduct such a Tax Contest for a period of 60 days), Buyer shall be at liberty (without reference to Seller) to admit, compromise, settle, discharge or otherwise deal with such Tax proceedingContest. Buyer shall control all other Tax Contests; provided that Seller shall have the right to participate in all Tax Contests that are reasonably likely to result in an adverse material effect to Seller. Notwithstanding the foregoing, if a Tax Contest involves amounts for which both Seller and Buyer (including the Transferred Companies) could be liable pursuant to the terms of this Article X, then the party with the larger potential liability shall control such Tax Contest and the other party shall have the right to participate.
(c) In the case of a Tax Contest that is reasonably likely to result in an adverse material effect to the party that does not control such Tax Contest (the “Non-Controlling Party”), (i) the party that controls such Tax Contest, as determined under Section 10.4(b) (the “Controlling Party”), shall take account of the reasonable comments of the Non-Controlling Party in relation to such a Tax Contest which are provided on a timely basis, (ii) no action shall be taken that is not full, true and accurate in all material respects, (iii) all correspondence and communications in relation to such a Tax Contest with the Taxing Authority which is a party to the Tax Contest shall be made through the advisers appointed by the Controlling Party to act on behalf of the Transferred Companies and shall be copied to the Non-Controlling Party, and (iiiv) Buyer the Controlling Party shall not settleinform the Non-Controlling Party of any notification request for a meeting (including any telephonic meeting) with or visit by any Taxing Authority and shall ensure that a representative of the Non-Controlling Party is present at any such meeting (if so requested in writing by the Non-Controlling Party).
(d) Except as set forth in Section 10.4(b), none of Buyer, the Transferred Companies or any Affiliate of any of the foregoing, nor Seller or any Affiliate of Seller, shall enter into any compromise or abandon agree to settle any such claim pursuant to any Tax Proceeding Contest that would adversely affect the other party for any year without obtaining the prior written consent of the Sellersother party, which consent shall may not be unreasonably withheld, conditioned withheld or delayed. Buyer and Seller agree to cooperate, and Buyer agrees to cause the Transferred Companies to cooperate, in the defense against or compromise of any Tax Contest.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Fidelity & Guaranty Life), Stock Purchase Agreement (Harbinger Group Inc.)
Contests. (a) Upon receipt If an audit is commenced or any other claim is made by Buyer, any Acquired Tax authority with respect to a Tax liability of the Company or any Affiliate thereof of a written notice of any pending its Subsidiaries for which Verizon, GTE or threatened Tax audits, examinations, protest proceedings, assessments or claims that Seller could give rise to a claim for indemnity be liable under Section 6.03 5.3(b) (an “Indemnifiable Tax Liability”a "TAX CONTEST"), Buyer shall promptly give written notice thereof notify Seller of such Tax Contest (unless Verizon, GTE or Seller previously was notified in writing directly by the relevant Tax authority). If Seller so requests in writing and at Seller's expense, Buyer (1) shall cause the relevant entity (Buyer, the Company, any Subsidiary or any successor) to Parent (the “contest such Tax Claim Notice”).
(b) Subject Contest on audit or by appropriate claim for refund or credit of Taxes or in a related administrative or judicial proceeding which Seller in its sole and absolute discretion chooses to Section 6.06(c), Sellers may elect direct such entity to control, through their Representativespursue, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they (2) shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permittedpermit Seller, at its expense, to be represented at each conference, hearing control the prosecution and settlement of any such audit or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises refund claim or abandons any claim of matters related to Indemnifiable Tax Liability, and administrative or judicial proceeding with respect to any such claim that could adversely affect an Acquired CompanyTax Contest; and, where deemed necessary by Seller, Buyer or any shall cause the relevant entity to authorize by appropriate powers of their respective affiliates 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 Post-Closing Tax Periodsuch proceeding; PROVIDED that in any case under this subsection, Sellers (x) Seller shall not settlenot, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditionedwithheld, withheld accept any proposed adjustment or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, enter into any settlement or agreement in compromise or contest otherwise dispose of any such Indemnifiable audit or refund claim or related administrative or judicial proceeding in a manner that would purport to bind the Company if such actions would materially and adversely affect the Tax Liability in liability or Tax basis, depreciation, amortization, useful lives, net operating losses, or similar Tax items of Buyer, the Company or any reasonable manner it deems appropriate of its Subsidiaries for Taxable periods or portions thereof ending after the Closing Date and (in its sole discretion), y) Seller shall keep Buyer informed as to the progress of any audit or refund claim or related administrative or judicial proceeding which Seller has taken control of and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, have the right to consult with Seller during such proceedings at its own expense. Buyer shall further execute and deliver, any Tax proceeding for a Straddle Period 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. Any refund of Taxes obtained by Buyer or the affected entity with respect to any Acquired Company; provided, however, that Tax period (ior portion thereof) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent Company ending on or before the Closing Date shall not be unreasonably withheld, conditioned or delayedpaid promptly to Seller in accordance with Section 5.3(c) hereof.
Appears in 2 contracts
Sources: Agreement of Merger (Tsi Finance Inc), Stock Purchase Agreement (Tsi Finance 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”) Upon receipt shall be delivered, sent, commenced, or initiated to, by Buyer, any Acquired Company or against Purchaser or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, Companies by any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer taxing authority with respect to each aspect Taxes that results in or may result in a Tax Loss for which indemnification may be claimed from Sellers under this Agreement, Purchaser shall promptly notify Sellers in writing of such Tax Contest; provided that the failure to so notify Sellers shall not relieve Sellers of their indemnification obligations hereunder, except to the extent that such failure prejudices Sellers’ defense of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof)Contest. Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim have the sole right to represent the Companies’ interests and to employ counsel of matters related to Indemnifiable Tax Liability, and their choice at their expense with respect to any such claim Tax Contest; and Purchaser shall cause each of the applicable Companies to execute any powers of attorney or other documents or forms necessary in order to allow Sellers to control such Tax Contest and to settle any such Tax Contest; provided that in the case of any Tax Contest relating to any Tax for any Straddle Period, Purchaser and Sellers shall each be entitled to participate at their own expense in such Tax Contest to the extent it relates to a Tax for which such party bears liability pursuant to Section 9.1. No party may settle or otherwise dispose of any Tax Contest for which another party may have a liability under Section 9.1 or which settlement could adversely affect an Acquired Company, Buyer either party in Tax periods for which such party is responsible or any of their respective affiliates with respect for which another party may be entitled to any Post-Closing Tax Period, Sellers shall not settle, compromise a refund or abandon any matter related to Indemnifiable Tax Liability credit under Section 9.1 without obtaining the prior written consent of Buyersuch other party, which consent shall will not be unreasonably conditionedwithheld, withheld conditioned or delayed. If In the event that Sellers elect do not take control of a Tax Contest that they have the right to represent control hereunder, Purchaser and the interests Companies shall keep Sellers reasonably informed as to the progress of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, Contest and (ii) Buyer shall not settle, compromise enter into any settlement or abandon any other disposition of the such Tax Proceeding Contest prior to receiving the written consent of Sellers, which consent will not be unreasonably withheld, conditioned or delayed. In no event, without obtaining the prior written consent of the SellersPLC, which consent shall not be unreasonably withheld, conditioned or delayed, shall Purchaser or the Companies grant an extension of any applicable statute of limitations in respect of any Tax period ending prior to the Closing Date or any Straddle Period.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Protective Life Insurance Co), Stock and Asset Purchase Agreement (Protective Life Corp)
Contests. (ai) Upon Seller on the one hand, and Buyer or Parent on the other, shall notify the other in writing within 30 days or such shorter period as may be required thereby of receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax auditsexamination, examinations, protest proceedings, assessments audit or claims other administrative or judicial proceeding (a "Tax Contest") that could give rise reasonably be expected to result in a claim liability for indemnity Taxes of another party. If the recipient of such notice of a Tax Contest fails to provide such notice to such other party, and the recipient is entitled to indemnification for Taxes under Section 6.03 (an “Indemnifiable this Agreement, it shall be entitled to indemnification for any Taxes arising in connection with such Tax Liability”)Contest, Buyer but only to the extent, if any, that such failure or delay shall promptly give written notice thereof not have adversely affected the indemnifying party's ability to Parent (defend against, settle, or satisfy any action, suit or proceeding against it, or any damage, loss, claim, or demand for which the “Tax Claim Notice”)indemnified party is entitled to indemnification hereunder.
(bii) Subject If a Tax Contest relates to Section 6.06(c)any Taxes for which Seller is liable in full hereunder, Sellers may elect to control, through their Representatives, Seller shall at its expense control the defense and at their expense, the compromise or contest, either administratively or in the courts, settlement of any Indemnifiable such Tax LiabilityContest. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any such Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect Contest relates to any such claim that could adversely affect an Acquired CompanyTaxes for which Buyer or Parent is liable in full hereunder, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers Parent shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, control the defense and settlement of such Tax Contest. A party not in control of the defense shall have the right to observe the conduct of any Tax proceeding Contest at its expense, including through its own counsel and other professional experts. If a Tax Contest relates to Taxes for a Straddle Period with respect to any Acquired Company; providedwhich Seller and either Buyer or Parent or both may be liable hereunder, however, the parties that (i) Buyer may have such liability shall consult with Sellers before taking any significant action in connection with jointly control the defense and settlement of such Tax proceedingContest.
(iii) To the extent that an issue raised in any Tax Contest controlled by one party or jointly controlled could materially affect the liability for Taxes of another party, the controlling party shall not, and (ii) Buyer shall not settleno party in the case of joint control shall, compromise or abandon any such Tax Proceeding enter into a final settlement without obtaining the prior written consent of the Sellersother party or parties, which consent shall not be unreasonably withheld. Where a party withholds its consent to any final settlement, conditioned that party may continue or delayedinitiate further proceedings, at its own expense, and the liability of the party or parties that wished to settle (as between the consenting and the non consenting parties) 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 or parties shall indemnify the consenting party or parties for such Taxes.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Headwaters Inc), Asset Purchase Agreement (Headwaters Inc)
Contests. (a) Upon receipt by BuyerAfter the Closing, the Purchaser shall promptly notify the Seller in writing of the proposed assessment or the commencement of any Acquired Company Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates or any Affiliate thereof of the ▇▇▇▇▇▇ Entities which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.01 (a “Claim”). Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates or any ▇▇▇▇▇▇ Entity) describing the Claim in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such Claim. If the Purchaser fails to give the Seller prompt notice of a written Claim as required by this Section 7.03, then the Seller shall not have any obligation to indemnify for any Loss arising out of such Claim, but only to the extent that failure to give such notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise results in a detriment to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”)Seller.
(b) Subject In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to Section 6.06(c)taxable periods ending on or before the Closing Date, Sellers the Seller shall have the sole right, at its expense, to control the conduct of such Contest.
(c) With respect to Straddle Periods, the Seller may elect to direct and control, through their Representativescounsel of its own choosing, and at their expenseany Contest involving any asserted Tax liability with respect to which Seller acknowledges liability indemnity may be sought from the Seller pursuant to Section 7.01. If the Seller elects to direct a Contest, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they Seller shall within thirty (30) Business Days 60 days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requires) liability notify Buyer the Purchaser of their its intent to do so, and Buyer the Purchaser shall cooperate and shall cause the ▇▇▇▇▇▇ Entities to fully cooperate, at the sole expense of SellersSeller’s expense, in each phase of such Contest. If the defense againstSeller elects not to direct the Contest, the Purchaser or any ▇▇▇▇▇▇ Entity may assume control of such Contest (at the Purchaser’s expense). However, in such case, none of the Purchaser or any ▇▇▇▇▇▇ Entity may settle or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability asserted liability without obtaining the prior written consent of Buyerthe Seller; provided, which however, that consent to settlement or compromise shall not be unreasonably conditioneddelayed or withheld. In any event, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Seller may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlparticipate, at its own expense, any Tax proceeding for a Straddle Period with respect in the Contest.
(d) The Purchaser and the Seller agree to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceedingcooperate, and (ii) Buyer shall not settlethe Purchaser agrees to cause the ▇▇▇▇▇▇ Entities to cooperate, in the defense against or compromise of any Claim or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayedContest.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dow Chemical Co /De/), Stock Purchase Agreement (Rohm & Haas Co)
Contests. (a) Upon receipt by BuyerAfter the Closing, the Purchaser shall -------- promptly notify the Shareholders in writing of the commencement of any Acquired Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, the Company or any Affiliate thereof Company Subsidiary which, if determined adversely to the taxpayer or after the lapse of a written notice of any pending or threatened Tax auditstime, examinations, protest proceedings, assessments or claims that could is likely to give rise to grounds for indemnification by the Shareholders. Such notice shall contain factual information (to the extent known to the Purchaser) 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 the Purchaser fails to give the Shareholders prompt notice of an asserted Tax liability, then (i) if the Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, the Shareholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if the Shareholders are not so precluded from contesting, but such failure to give prompt notice results in a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”)detriment to the Shareholders, Buyer any amount which the Shareholders are otherwise required to pay the Purchaser with respect to such liability shall promptly give written notice thereof to Parent (be reduced by the “Tax Claim Notice”)amount of such detriment.
(b) Subject to Except as indicated in the last sentence of this Section 6.06(c8.04(b), Sellers the Shareholders may elect to controldirect, through counsel of their Representatives, 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 from the compromise Shareholders (any such audit, claim for refund or contest, either administratively or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability are referred to herein collectively as a "Contest"). If Sellers the Shareholders elect to so represent direct the interests Contest of an Acquired Company or Buyerasserted Tax ------- liability, they shall shall, within thirty (30) Business Days 30 calendar days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requires) liability, notify Buyer the Purchaser of their intent to do so, and Buyer the Purchaser shall cooperate and shall cause the Company and the Company Subsidiaries to cooperate, at the sole expense of SellersShareholders' expense, in the defense against, or compromise or settlement of, any claim in any each phase of such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayedContest. If Sellers the Shareholders elect not to represent direct the interests Contest, fail to notify the Purchaser of an Acquired Companytheir election as herein provided or contest their indemnification obligation, Buyer the Purchaser may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlcontest, at its own expense, such asserted liability. However, in such case, the Purchaser may not settle or compromise any Tax proceeding for a Straddle Period with respect to any Acquired Companyasserted liability over the objection of the Shareholders; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, consent to settlement or compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be -------- ------- unreasonably withheld. In any event, conditioned or delayedboth the Purchaser and the Shareholders may participate, at their own expense, in the Contest. If a Contest includes both an asserted liability with respect to which an indemnity may be sought from the Shareholders and an asserted liability for which no such indemnity may be sought, the foregoing provisions of this Section 8.04(b) shall apply only to such portion of the Contest as involves the asserted liability with respect to which an indemnity may be sought from the Shareholders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pogo Producing Co), Merger Agreement (Pogo Producing Co)
Contests. (a) Upon receipt by BuyerFor purposes of this Agreement, a “Contest” is any Acquired Company audit, court proceeding or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and other dispute with respect to any Tax matter that affects the Company or its Subsidiaries. Unless the Buyer has previously received written notice from the Equityholder Representative of the existence of such Contest, the Buyer shall give written notice to the Equityholder Representative of the existence of any Contest relating to a Tax matter which could result in an indemnity claim by any Buyer Indemnified Person pursuant to Article VIII, within ten days from the receipt by the Buyer of any written notice of such Contest, but no failure to give such notice shall relieve the Sellers of any liability hereunder unless the Sellers are materially prejudiced thereby. The Buyer, on the one hand, and the Equityholder Representative, on the other, agree, in each case at no cost to the other party, to cooperate with the other and the other’s Representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party, during normal business hours, all books, records, returns, documents, files, other information (including, without limitation, working papers and schedules), officers or employees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest requiring any such books, records and files. If a Contest relates to a Tax matter that could adversely affect result in an Acquired Companyindemnity claim by any Buyer Indemnified Person pursuant to Article VIII and the then remaining amount in the Indemnity Escrow Fund is equal to at least half of the amount of Taxes that would reasonably be expected to be payable as a result of such Contest (such Contest, Buyer or any of their respective affiliates with respect to any Post-Closing a “Seller Tax PeriodContest”), Sellers shall not settlethe Equityholder Representative shall, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining at its election, have the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not right to represent the Company’s or applicable Subsidiary’s interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in such Seller Tax Contest, to employ counsel of its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, choice at its own expenseexpense (on behalf of the Sellers) and to control the conduct of such Seller Tax Contest, any Tax proceeding for a Straddle Period with respect to any Acquired Companyincluding settlement or other disposition thereof; provided, however, that (i) the Buyer shall have the right to consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon the Equityholder Representative regarding any such Seller Tax Proceeding without obtaining Contest at the Buyer’s own expense; provided further, that any settlement or other disposition of any such Seller Tax Contest may only be with the prior written consent of the SellersBuyer, which consent shall will not be unreasonably withheld, conditioned withheld or delayed. Buyer shall have the right to control any Seller Tax Contest that the Equityholder Representative does not elect to control, and any other Contest that could result in an indemnity claim by any Buyer Indemnified Person pursuant to Article VIII; provided, however, that the Equityholder Representative shall have the right to consult with the Buyer regarding any such Contest at the Equityholder Representative’s own expense (on behalf of the Sellers); provided further, that any settlement or other disposition of any such Contest may only be with the prior written consent of the Equityholder Representative, which consent will not be unreasonably withheld or delayed. Except as otherwise explicitly set forth in this Section 4.8(b), the Buyer shall have the sole right to control the conduct of any Contest with respect to any period ending after the Closing Date.
Appears in 2 contracts
Sources: Merger Agreement (Zayo Group LLC), Merger Agreement (Zayo Group LLC)
Contests. (a) Upon receipt by BuyerWhenever any Governmental Authority asserts a claim, any Acquired Company makes an assessment or any Affiliate thereof otherwise disputes the amount of a written notice Taxes for which Sellers are or may be liable under this Agreement, Purchaser shall, if informed of any pending or threatened Tax auditssuch an assertion, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (inform the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representativesrelevant Seller within ten business days, and at their expensethe relevant Seller 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 compromise extent such proceedings or contestdeterminations affect the amount of Taxes for which such Seller may be liable under this Agreement, either administratively except that Purchaser shall have the right to consent, which consent will not be unreasonably withheld or in delayed, to any settlement to the courts, extent such proceedings or settlement materially affect the amount of any Indemnifiable Tax LiabilityTaxes for which Purchaser may be liable under this Agreement. If Sellers elect Purchaser fails to so represent provide such notice and such failure shall materially prejudice a Seller's ability to defend such assessment, then the interests Seller's indemnification obligations shall be null and void with regard to such assessment. 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 Seller shall if informed of such an Acquired Company or Buyerassertion, they shall inform Purchaser within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner10 business days, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellersand, in any case, Purchaser shall have the defense against, or compromise or settlement of, right to control any claim in resulting proceedings and to determine whether and when to settle any such proceeding. In claim, assessment or dispute, except that event, Sellers shall reasonably and in good faith consult with Buyer with respect have the right to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyerconsent, which consent shall not be unreasonably conditioned, withheld or delayed, to any settlement to the extent such proceedings settlement affects the amount of Taxes for which Sellers are or may be liable under this Agreement. If Sellers elect not Seller fails to represent provide such notice and such failure materially prejudices Purchaser's ability to defend such assessment, then the interests of an Acquired Company, Buyer may pay, compromise or contest Purchasers indemnification obligation shall be null and void with regard to such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liabilityassessment.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Sources: Acquisition Agreement, Acquisition Agreement (McLeodusa Inc)
Contests. Whenever any Taxing Authority asserts a claim, makes an assessment, or otherwise disputes the amount of Taxes for which Seller may reasonably be expected to be liable under this Agreement (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened “Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax LiabilityClaim”), Buyer Purchaser shall upon receipt of notice of such Tax Claim, promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or inform Seller in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Companywriting; provided, however, that failure to give such notice as provided herein shall not relieve Seller of its obligations under this Article V except to the extent that Seller is materially prejudiced thereby. Seller shall have the right to elect to control the defense of any Tax Claim relating to taxable periods ending on or before the Closing Date, or otherwise relating to Taxes for which Seller may be liable under this Agreement (other than with respect to a Straddle Period), at its sole cost and expense by written notice to Purchaser within ten (10) days of receipt of notice thereof; provided, however, that Purchaser may, at its sole cost and expense, retain separate counsel of its choosing to participate in the defense or settlement of such Tax Claim by Seller. If Seller timely elects to control the defense of any such Tax Claim in accordance with this Section 5.06, (i) Buyer Seller shall consult keep Purchaser reasonably apprised of the status of the Tax Claim and the defense thereof and shall reasonably consider recommendations made by Purchaser with Sellers before taking any significant action in connection with such Tax proceeding, respect thereto and (ii) Buyer Purchaser shall not settle, compromise or abandon any such Tax Proceeding without obtaining have the prior written consent of the Sellersright to consent, which consent shall may not be unreasonably withheld, conditioned or delayed, to any settlement to the extent such settlement would affect the amount of Taxes for which Purchaser or its Affiliates may be liable for taxable periods ending after the Closing Date. If Seller elects not to control the defense or thereafter fails or ceases to defend any such Tax Claim, Purchaser shall have the right to control the defense of such Tax Claims at its sole cost and expense, and Seller shall have the right to consent, which consent may not be unreasonably withheld, conditioned or delayed, to any settlement thereof to the extent such settlement would affect the amount of Taxes for which Seller may be liable under this Agreement. Except as otherwise required by the foregoing provisions of this Section 5.06, Purchaser shall have the right to control any proceedings relating to Taxes of or with respect to the Company or any of its Subsidiaries; provided, however, that, in the case of a Tax Claim with respect to a Straddle Period, Seller shall be entitled to participate in such proceeding (at its sole cost and expense) to the extent such Tax Claim is related to the portion of such Straddle Period that is a Pre-Closing Tax Period, and Purchaser shall not settle such portion of such Tax Claim without the Seller’s consent, which consent may not be unreasonably withheld, conditioned or delayed, if such settlement would affect the amount of Taxes for which Seller may be liable under this Agreement.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Steel Dynamics Inc), Membership Interest Purchase Agreement (Ak Steel Holding Corp)
Contests. (a) Upon receipt by Buyer, Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Acquired Company Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any Affiliate thereof actions with respect to the same. The failure of a Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any pending Tax or threatened Tax audits, examinations, protest proceedings, assessments Damage directly or claims indirectly related to the subject matter of such written notification or other communication except to the extent that could give rise the Indemnifying Party is materially and irrevocably prejudiced by the failure to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give provide such written notice thereof to Parent (the “Tax Claim Notice”)notice.
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and (i) Stockholder Representative (at their Stockholders’ expense, which shall be paid solely from the compromise Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or contest, either administratively examination by any taxing authority or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company other judicial or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer administrative proceeding with respect to each aspect Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the defense againstCompanies (each, or compromise or settlement of, a “Tax Matter”) for any such Indemnifiable Pre-Closing Tax Liability. Without limiting Period (but for this purpose excluding any Straddle Period) but only to the generality of extent the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and Stockholders have an obligation with respect to any such claim Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that could adversely affect an Acquired CompanyStockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, Buyer or any of their respective affiliates which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period, Sellers . Stockholder Representative shall not settleassert any defenses or claims, compromise enter into any settlement of, or abandon otherwise compromise, any matter related such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to Indemnifiable Tax Liability which the Stockholders would not be liable hereunder, without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the SellersParent, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representative.
Appears in 2 contracts
Sources: Merger Agreement (Vici Properties Inc.), Merger Agreement (Penn National Gaming Inc)
Contests. (a) Upon receipt by BuyerWhenever any taxing authority provides notice of an inquiry, any Acquired Company audit, examination, proceeding or any Affiliate thereof of makes a written notice assertion of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for or dispute regarding, or assessment of, Taxes (a "Tax Claim") for which Seller is liable or required to provide indemnification under this Agreement, Purchaser shall, if informed of such notice of an inquiry, audit, examination, proceeding, assertion or assessment, inform Seller within fifteen (15) calendar days; provided, however, that any failure to inform Seller shall not relieve Seller of its obligation to provide the indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof required hereunder as to Parent (the “such Tax Claim Notice”except to the extent that such failure has materially prejudiced Seller's ability to defend such Tax Claim. Seller shall have the right to control any resulting inquiry, audit, examination or proceedings and to determine whether and when to settle any resulting claim, assessment or dispute to the extent such inquiry, audit, examination, proceedings or determinations affect the amount of Taxes for which Seller is liable or required to provide indemnification under this Agreement (including those attributable to the Straddle Period).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (iA) Buyer Seller shall consult with Sellers before taking any significant action have acknowledged that it is liable to the Purchaser Indemnified Parties for such Taxes under Section 6.6(b) (or the applicable portion of Taxes for such period, in connection with the case of Taxes attributable to the Straddle Period); (B) Seller shall conduct such Tax proceedingproceedings in a commercially reasonable manner; (C) Purchaser, the Company and the Subsidiaries may participate in such proceedings at their own expense; (iiD) Buyer Seller shall not compromise or settle, or agree to compromise or abandon settle, any such Tax Proceeding Claim without obtaining the prior written Purchaser's consent of the Sellers, (which consent shall not be unreasonably withheld, conditioned withheld or delayed); (E) if Seller does not so elect, Purchaser shall control the prosecution and defense of such Tax Claim, which shall be conducted in a commercially reasonable manner; and (F) if Purchaser so elects, it may override Seller's election to control the prosecution and defense of such Tax Claim, in which case the Purchaser Indemnified Parties shall be deemed to have waived their rights to indemnification for such Tax Claim. Whenever any taxing authority makes a Tax Claim for which Purchaser is liable or required to provide indemnification under this Agreement, Seller shall, if informed of such notice of an inquiry, audit, examination, proceeding, assertion or assessment, inform Purchaser within fifteen (15) calendar days; provided, however, that any failure to inform Purchaser shall not relieve Purchaser of its obligation to provide the indemnity required hereunder as to such Tax Claim except to the extent that such failure has materially prejudiced Purchaser's ability to defend such Tax Claim. Purchaser shall have the right to control all proceedings relating to Tax Claims (1) that Seller does not have the right to control under this Section 6.6(e) or (2) that do not relate exclusively to Taxes of the Company or the Subsidiaries for Pre-Effective Tax Periods or the Straddle Period; provided, however, that to the extent a Tax Claim could reasonably be expected to materially affect the amount of Taxes for which Seller is liable under or required to provide indemnification under this Agreement, (1) Purchaser shall conduct such proceedings in a commercially reasonable manner; and (2) Purchaser shall not compromise or settle, or agree to compromise or settle, such Tax Claim without Seller's consent (which shall not be unreasonably withheld or delayed).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Brookdale Senior Living Inc.), Stock Purchase Agreement (Capstead Mortgage Corp)
Contests. (a) Upon In the event any Governmental Authority determines that Distribution Provider’s receipt by Buyerof payments or property constitutes income that is subject to taxation, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax auditsDistribution Provider shall notify Interconnection Customer, examinationsin writing, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Calendar Days of delivery receiving notification of any Tax Claim Notice (or reasonably soonersuch determination by a Governmental Authority. Upon the timely written request by Interconnection Customer and at Interconnection Customer's sole expense, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do soDistribution Provider may appeal, and Buyer shall cooperateprotest, at the sole expense of Sellers, in the defense againstseek abatement of, or compromise or settlement of, any claim in any otherwise oppose such proceedingdetermination. In that event, Sellers shall reasonably Upon Interconnection Customer's written request and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its sole expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any Distribution Provider may file a claim of matters related to Indemnifiable Tax Liability, and for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such claim that could adversely affect an Acquired Companya determination. Distribution Provider reserves the right to make all decisions with regard to the prosecution of such appeal, Buyer protest, abatement or any other contest, including the selection of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, counsel and compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining settlement of the prior written consent claim, but Distribution Provider shall keep Interconnection Customer informed, shall consider in good faith suggestions from Interconnection Customer about the conduct of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion)contest, and Sellers shall remain fully liable for reasonably permit Interconnection Customer or an Interconnection Customer representative to attend contest proceedings. Interconnection Customer shall pay to Distribution Provider on a periodic basis, as invoiced by Distribution Provider, Distribution Provider’s documented reasonable costs of prosecuting such Indemnifiable Tax Liability.
(c) Buyer shall controlappeal, at its own expenseprotest, abatement or other contest. At any Tax proceeding for time during the contest, Distribution Provider may agree to a Straddle Period settlement either with respect Interconnection Customer's consent or after obtaining written advice from nationally-recognized tax counsel, selected by Distribution Provider, but reasonably acceptable to any Acquired Company; provided, howeverInterconnection Customer, that (i) Buyer the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection Customer's obligation shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining be based on the prior written consent amount of the Sellerssettlement agreed to by Interconnection Customer, which or if a higher amount, so much of the settlement that is supported by the written advice from nationally- recognized tax counsel selected under the terms of the preceding sentence. The settlement amount shall be calculated on a fully-grossed-up basis to cover any related cost consequences of the current tax liability. Any settlement without Interconnection Customer's consent shall not be unreasonably withheld, conditioned or delayedsuch written advice will relieve Interconnection Customer from any obligation to indemnify Distribution Provider for the tax at issue in the contest.
Appears in 1 contract
Sources: Service Agreement for Wholesale Distribution Service
Contests. Purchaser shall inform Seller of the commencement of any audit, examination or proceeding (a“Tax Contest”) Upon relating in whole or in part to Taxes for which Seller is responsible hereunder within ten (10) days of its receipt by Buyer, of any Acquired Company or any Affiliate thereof of a written notice of any pending deficiency, proposed adjustment, assessment, audit, examination or threatened other administrative or court proceeding, suit, dispute, or other claim in which a Taxing Authority makes or proposes to make a Tax audits, examinations, protest proceedings, assessments or claims adjustment that could give rise result in an indemnity payment pursuant to a claim for indemnity under Article VII or Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability9.03 hereof. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permittedSeller, at its option and at its own expense, shall control all proceedings and other Actions taken in connection with such Tax Contest except for (i) any Tax Contest involving a Tax period beginning before and ending after the Closing Date, or (ii) any Tax Contest that could reasonably be expected to be represented at each conference, hearing affect the Tax liability of Purchaser or meeting with representatives any of the pertinent taxing authority (Companies by greater than for any Post Closing Period, in which case Seller and Purchaser shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and jointly control all proceedings with respect to any such claim that could adversely affect an Acquired CompanyTax Contest at their own cost and expense. Notwithstanding the foregoing, Buyer if notice is given to Seller of the commencement of any Tax 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 any compromise or settlement thereof effected by Purchaser. The failure of their respective affiliates Purchaser to give reasonably prompt notice of any Tax Contest shall not release, waive or otherwise affect Seller’s obligations with respect thereto except to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent extent that Seller can demonstrate actual and material loss and prejudice as a result of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liabilityfailure.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Sources: Stock Purchase Agreement
Contests. (a) Upon Each of Purchaser, the Company and 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 Buyer, any Acquired Company or any Affiliate thereof the Recipient of a 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 audits, examinations, protest proceedings, assessments or claims 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 give rise such prompt notice to a claim the other party, the Recipient shall not be entitled to indemnification for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “any Taxes arising in connection with such Tax Claim Notice”)if and to the extent that such failure to give notice materially and adversely affects the other party.
(b) Subject Seller shall have the sole right to Section 6.06(c), Sellers may elect to control, through their Representatives, represent and at their expense, control the compromise or contest, either administratively or Acquired Companies' interests in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (relating to taxable periods ending on or reasonably sooner, if before the nature Closing Date and to employ counsel of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, its choice at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer Seller shall consult with Sellers before taking any significant action have no right to represent the -------- ------- Acquired Companies' interest in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining 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 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 Sellerscontrol of such entire Tax Claim. None of Purchaser, any of its Affiliates, or any Acquired Company may settle or otherwise dispose of any Tax Claim for which Seller may have a liability under this Agreement, or which may result in an increase in Seller's liability under this Agreement, without the prior written consent of Seller, which consent shall may not be unreasonably withheld, conditioned unless Purchaser and the Acquired Companies fully indemnify Seller in writing with respect to such liability in a manner satisfactory to Seller. Neither Seller nor any of its affiliates may settle or delayedotherwise 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 unreasonably withheld, unless Seller fully indemnifies Purchaser and the Acquired Companies in writing with respect to such liability in a manner satisfactory to Purchaser.
(c) Seller shall use its reasonable best efforts to minimize any interest, penalties, and other additions to Taxes that may be payable with respect to any Tax Claim for which the Seller has the right to represent and control the Acquired Companies' interests.
Appears in 1 contract
Sources: Merger Agreement (GSL Corp)
Contests. Newco Sub agrees to give written notice to the 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 involves the assertion of any claim, 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 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 Remington Holder) (a “Tax Claim”). The Remington Holders will have the right (but not the obligation) to control the contest or resolution of any Tax Claim; provided, that (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a the Remington Holders will have provided written notice to Newco Sub of any pending or threatened its intention to control such Tax auditsClaim, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
and (b) Subject the Remington Holders will obtain the prior written consent of the Target (which consent will not be unreasonably withheld or delayed) before entering into any settlement or concession of such Tax Claim if such settlement or concession could reasonably be expected to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expenseadversely impact the liability of Newco Sub, the compromise Target or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to Affiliates for Taxes for any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, howeverfurther, that (i) Buyer shall consult with Sellers before taking any significant action Newco Sub will be entitled to participate in connection with the defense of such Tax proceedingContest and to employ counsel of its choice for such purpose, the fees and (ii) Buyer shall expenses of which separate counsel will be borne by Newco Sub. To the extent the Remington Holders do not settlecontrol a Tax Claim, compromise or abandon any the Company Parties may defend against such Tax Proceeding 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 conceded without obtaining the prior written consent of the SellersRemington Holders, which consent shall will not be unreasonably withheld, conditioned withheld or delayed. 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”) Upon receipt shall be delivered, sent, commenced, or initiated to, by Buyeror against a Parent Group Member, any Acquired the Company or any Affiliate thereof of a written notice of Subsidiary by any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer taxing authority with respect to each aspect of Taxes that results in or may result in Tax Losses or Expenses for which indemnification may be claimed against Shareholders and the defense againstDolEx Class B Shareholders under this Agreement, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers Parent shall promptly notify Buyer the Shareholder Representative in writing after it settlesof 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, compromises except to the extent that such failure prejudices the Shareholders or abandons any claim the DolEx Class B Shareholders defense of matters related the Tax Contest. The Shareholders and the DolEx Class B Shareholders shall have the right to Indemnifiable Tax Liability, represent the Company and each Subsidiary’s interests and to employ counsel of their choice at their expense with respect to any such claim Tax Contest for which they are entirely liable; provided that could adversely affect an Acquired Companythe 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 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, Buyer Parent shall also be entitled to participate at its own expense in such Tax Contest. In the case of any Tax Contest relating to any Tax for any Straddle Period, or any of their respective affiliates with respect to any Post-Closing Tax PeriodContest in which the Shareholders or the DolEx Class B Shareholders do not have the right to represent the Company or a Subsidiary’s interest pursuant to this Section 10.2(d), Sellers Parent, the Shareholders, and the DolEx Class B Shareholders shall each be entitled to participate at their own expense in such Tax Contest to the extent it relates to a Tax for which such party bears Losses or Expenses pursuant to Section 10.1. No party may settle or otherwise dispose of any Tax Contest in any manner without the consent and approval of the other party, which consent and approval will not be unreasonably withheld, conditioned or delayed. In the event that Shareholders or 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 settle, compromise enter into any settlement or abandon any matter related other disposition of such Tax Contest prior to Indemnifiable Tax Liability without obtaining receiving the prior written consent of Buyerthe Shareholder Representative, which consent shall will not be unreasonably conditionedwithheld, withheld conditioned or delayed. If Sellers elect not to represent the interests of an Acquired CompanyIn no event, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the SellersShareholder Representative, which consent shall not be unreasonably withheld, conditioned or delayed, shall Parent, the Company or each Subsidiary grant an extension of any applicable statute of limitations in respect of any Tax period ending on or prior to the Closing Date or any Straddle Period.
Appears in 1 contract
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise Purchaser agrees to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent the Seller Representative of the receipt of any written notice by the Company, Purchaser or any of Purchaser’s Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity may be sought by Purchaser pursuant to this Article 7 (the a “Tax Claim NoticeClaim”); provided, that failure to comply with this provision shall not affect Purchaser’s right to indemnification hereunder except to the extent that Sellers’ rights and obligations have been prejudiced thereby.
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, Purchaser shall control the compromise contest or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery resolution of any Tax Claim Notice except for (or reasonably sooneri) a Tax Claim that relates solely to any Pre-Closing Tax Period (a “Pre-Closing Tax Claim”), if which shall instead be controlled by the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do soSeller Representative as provided below, and Buyer (ii) a Tax Claim that relates to periods both before and after the Closing Date (a “Straddle Period Tax Claim”), which shall cooperate, at instead be jointly controlled by Purchaser and the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceedingSeller Representative as provided below. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with With respect to any such claim that could adversely affect an Acquired CompanyTax Claim controlled solely by Purchaser, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers Purchaser shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining obtain the prior written consent of Buyer, the Seller Representative (which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not ) before entering into any settlement of such claim or ceasing to represent the interests of an Acquired Company, Buyer may pay, compromise or contest defend such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion)claim, and Sellers the Seller Representative shall remain fully liable be entitled to participate in the defense of such claim and to employ counsel of the Seller Representative’s choice for such Indemnifiable Tax Liabilitypurpose, the fees and expenses of which separate counsel shall be borne solely by Sellers.
(c) Buyer The Seller Representative shall control, at its own expense, control the contest or resolution of any Pre-Closing Tax proceeding for a Straddle Period with respect to any Acquired CompanyClaim; provided, however, that (i) Buyer Seller Representative shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining obtain the prior written consent of the Sellers, Purchaser (which consent shall not be unreasonably withheld, conditioned withheld or delayed) before entering into any settlement of such claim or ceasing to defend such claim; and, provided further, that Purchaser shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Purchaser.
(d) Purchaser and the Seller Representative shall be jointly responsible for the control and contest or resolution of any Straddle Period Tax Claim. If Purchaser and the Seller Representative are unable to resolve disagreements relating to any such Straddle Period Tax Claim, including but not limited to any proposed settlement of a claim or ceasing to defend such claim, then Purchaser and the Seller Representative shall retain the Independent Accountant as determined pursuant to the procedure set forth in Section 2.5(b)(iii) for the purposes of resolving disputes about such claim. Such Independent Accountant shall follow the substantive procedures set forth in Section 2.5(b)(iv) in resolving any such disputes. The costs, fees and expenses of the Independent Accountant shall be paid one-half by Purchaser and one-half by Sellers.
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Contests. (a) Upon receipt by BuyerAfter the Closing, the Purchasers shall promptly notify the Sellers in writing of any Acquired Company or any Affiliate thereof of a written notice of a proposed assessment or claim made by any pending Tax authority in an audit or threatened administrative or judicial proceeding, or otherwise, which, if successful, would be grounds for indemnification by the Sellers under this Article VII ("Tax audits, examinations, protest proceedings, assessments or claims that could give rise to Claim"). If notice of a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”)is not given to the Sellers promptly after receipt by the Purchasers, or in reasonable detail to inform the Sellers of the nature of the Tax Claim, in each case taking into account the facts and circumstances with respect to such Tax Claim, the Sellers shall not be liable to the Purchasers, to the extent that either Seller's position is actually prejudiced as a result of a failure to so promptly notify or inform.
(b) Subject In the case of a Tax Claim that relates to Section 6.06(cperiods ending on or before the Closing Date, the Sellers shall have the right at their expense to participate in and control the conduct of all proceedings in connection with such Tax Claim (including selection of counsel), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer the Sellers shall consult with Sellers before taking any significant action in connection with not settle or otherwise compromise such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding Claim without obtaining the prior written consent of the SellersPurchasers' consent, which consent shall not be unreasonably withheld. If the Sellers do not elect to contest any such audit or proceeding, conditioned the Purchasers may defend the same in such manner as they may deem appropriate, including, but not limited to, settling such audit or delayedproceeding after giving five days' prior written notice to the Sellers setting forth the terms and conditions of settlement.
(c) With respect to issues relating to a potential adjustment for which both a Seller and a Purchaser, a Company or the Subsidiary could be liable, (i) each party may participate in the audit or proceeding, and (ii) 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, except that neither party shall settle or otherwise compromise such adjustment without the consent of the other party, which consent shall not be unreasonably withheld. The principle set forth in the 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 under this Article VII by the Purchasers and the Sellers.
Appears in 1 contract
Contests. (a) Upon receipt After the Closing, the Purchaser shall reasonably promptly after becoming aware thereof notify the Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding and shall also separately notify the Seller in writing of any demand or claim on the Purchaser which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification by Buyer, the Seller under this Article VII. Such notice shall contain factual information (to the extent known to the Purchaser) describing the asserted Tax liability in reasonable detail and shall include copies of any Acquired Company notice or other document received from any Affiliate thereof taxing authority in respect of a written any such asserted Tax liability. If the Purchaser fails to give the Seller reasonably prompt notice of an asserted Tax liability as required by this Section 7.04, then (i) if the Seller is precluded by the failure to give reasonably prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then the Seller shall not have any pending obligation to indemnify for any loss or threatened damage arising out of such asserted Tax auditsliability, examinationsand (ii) if the Seller is not so precluded from contesting but such failure to give reasonably prompt notice results in an actual detriment to the Seller, protest proceedings, assessments or claims that could give rise then any amount which the Seller is otherwise required to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer pay the Purchaser pursuant to this Article VII with respect to such liability shall promptly give written notice thereof to Parent (be reduced by the “Tax Claim Notice”)amount of such detriment.
(b) Subject to Section 6.06(c)The Seller, Sellers promptly after receiving notice, may elect to controldirect, through their Representatives, counsel of 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 against the compromise Seller under this Article VII (any such audit, claim for refund or contest, either administratively or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability are referred to herein collectively as a "Contest"). If Sellers elect the Seller elects to so represent direct the interests Contest of an Acquired Company or Buyerasserted Tax liability, they the Purchaser shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperatecooperate in all reasonable respects, at the sole expense of SellersSeller's expense, in each phase of such Contest. If the defense against, Seller does not either reasonably promptly give notice to direct the Contest or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect commence the direction of the defense againstContest or if it contests its obligation to indemnify under Section 7.01, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Purchaser may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlcontest, at its own expense, such asserted liability without waiving any Tax proceeding for a Straddle Period with respect of its rights to indemnification hereunder. However, in such case, the Purchaser may not settle or compromise any Acquired Companyasserted liability over the objection of the Seller; provided, however, that the Seller's consent to settlement or compromise shall not be unreasonably withheld or delayed. In any event, each of the Purchaser and the Seller may participate, at their own expense, in the Contest. If the Seller chooses to direct the Contest, the Purchaser shall promptly empower (iby power of attorney and such other documentation as may be appropriate) Buyer such representatives of the Seller as Seller may designate to represent the Purchaser or its successor in the Contest insofar as the Contest involves an asserted Tax liability for which the Seller would be liable under this Article VII. If, with respect to any proposed settlement referred to in clause (x) of the previous sentence, the Seller proposes in good faith to settle a claim, suit, action or proceeding with respect to any Tax, which settlement offer is accepted by the relevant taxing authority, the Purchaser may elect to continue to contest such claim, suit, action or proceeding; provided that notwithstanding how such matter is ultimately settled or decided, the liability of the Seller with respect to such claim, suit, action or proceeding shall be no greater than the amount which would have been payable if the Purchaser had consented to the settlement proposed by the Seller.
(c) The Purchaser shall have the sole obligation and right to direct, at its own expense, a Contest regarding any Tax Return for any taxable period commencing after the Closing Date in the case of a Tax Return which is filed on a combined, consolidated, unitary or similar basis with the Purchaser; provided, however, that the Purchaser shall advise and consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon the Seller regarding the status of any such Contest that involves an asserted Tax Proceeding liability for which the Seller would be liable under this Article VII and provided, further, that, Purchaser shall not, without obtaining the prior written consent of the Sellers, Seller (which consent shall not be unreasonably withheld, conditioned withheld or delayed) settle any such contest.
Appears in 1 contract
Sources: Asset Purchase Agreement (Risk Capital Holdings Inc)
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a Buyer agrees to give prompt written notice to Seller of the receipt of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (by the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates Buyer’s Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of Pre-Closing Taxes (a “Tax Claim”). Seller may, at Seller’s expense, assume the defense of any such Tax Claim. If Seller assumes such defense, Seller will have the right to control (including selection of counsel) such Tax Claim and, without limiting the foregoing, may in its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect to thereto, and may, in its reasonable discretion, either pay the Tax claimed or ▇▇▇ for a refund where applicable Law permits such refund suits or contest the matter in any permissible matter. Seller may not, without Buyer’s consent, which shall not be unreasonably withheld or delayed, resolve any Tax Claim in a manner that would have an adverse effect on Buyer or the Company for a Post-Closing Tax Period. Buyer will cooperate with Seller with respect to the resolution of such Tax Claim and will not, Sellers without the prior consent of Seller, which shall not be unreasonably withheld or delayed, take any action to settle, compromise or abandon resolve any matter related to Indemnifiable such Tax Liability without obtaining Contest. If Seller does not assume the defense of a Tax Claim, Buyer shall control the contest or resolution of any Tax Claim; provided, however, that Buyer shall have no obligation to defend or participate in the defense of a Tax Claim. If Buyer defends or participates in the defense of a Tax Claim, Buyer shall obtain the prior written consent of Buyer, Seller (which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not ) before entering into any settlement of a claim or ceasing to represent defend such claim; and, provided further, that Seller shall be entitled to participate in the interests defense of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in claim and to employ counsel of its sole discretion), and Sellers shall remain fully liable choice for such Indemnifiable Tax Liability.
(c) Buyer purpose, the fees and expenses of which separate counsel shall controlbe borne solely by Seller. Seller shall pay all Buyer’s reasonable costs and expenses, at its own expenseincluding attorneys’ fees, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action incurred in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayedClaim.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Enservco Corp)
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”)After the Closing, Buyer shall promptly notify 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 Buyer, its Affiliates or the Acquired Companies which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by Seller. Such notice shall contain factual information (to the extent known to Buyer, its Affiliates or the Acquired Companies) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability. If Buyer fails to give written Seller prompt notice thereof of an asserted Tax liability as required by this Section 8.4, then Seller shall not have any obligation to Parent (indemnify for any loss arising out of such asserted Tax liability, but only to the “Tax Claim Notice”)extent that failure to give such notice results in a material detriment to Seller.
(b) Subject In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to Section 6.06(c)taxable periods ending on or before the Closing Date, Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they Seller shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at have the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permittedright, at its expense, to be represented at each conferencecontrol the conduct of such Contest, hearing or meeting with representatives of the pertinent taxing authority (and provided, however, that Seller shall be notified keep Buyer reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and informed with respect to such Contest and that Buyer may (at its sole expense) participate in the defense of such Contest. Seller shall not settle or otherwise agree to the resolution of any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability Contest without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned conditioned, or delayed).
(c) Buyer shall direct and control, through counsel of its own choosing, any Contest with respect to a taxable period that begins prior to the Closing Date and ends after the Closing (a “Straddle Period”), and Seller shall cooperate in each phase of such Contest. None of Buyer or any Acquired Company may settle or compromise any asserted liability for which Seller would have an indemnification obligation pursuant to this Article 8 without prior written consent of Seller; provided, however, that consent to settlement or compromise shall not be unreasonably withheld, conditioned, or delayed. In any event, Seller may participate, at its own expense, in such Contest to the extent it could result in an indemnification obligation of Seller pursuant to this Article 8.
(d) Buyer and Seller agree to cooperate, and Buyer agrees to cause the Acquired Companies to cooperate, in the defense against or compromise of any claim in any Contest.
(e) For purposes of this Agreement, Taxes allocable to the portion of a Straddle Period ending on the Closing Date shall be (i) in the case of any Taxes other than income Taxes, South Dakota Mineral Severance Tax and Taxes based on receipts or sales or that are otherwise transactionally based, deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the taxable period prior to and ending on the Closing Date and the denominator of which is the number of days in the entire Straddle Period, and (ii) in the case of any income Taxes, South Dakota Mineral Severance Tax and Taxes based on receipts or sale or that are otherwise transactionally based, be deemed equal to the amount which would be payable if the relevant Straddle Period ended on the Closing Date, provided that all permitted allowances, credits, exemptions and deductions that are normally computed on the basis of an entire year period (such as depreciation and amortization deductions) shall accrue on a daily basis and shall be allocated between the pre-Closing portion of the Straddle Period and the post-Closing portion of the Straddle Period in proportion to the number of days in each such period; provided, however, that any credits relating to a Straddle Period shall be taken into account as though the relevant taxable period ended on the Closing Date and provided that all determinations necessary to give effect to the foregoing allocations shall be made in a manner consistent with prior practices of the Acquired Companies, except where such practice is not consistent with applicable legal requirements. Notwithstanding the foregoing, any penalty, interest or addition to Tax shall be allocated to the party that bears the liability for the Tax to which such penalty, interest or addition to Tax relates, regardless of when such penalty, interest or addition to Tax is assessed.
Appears in 1 contract
Contests. (a) Upon receipt by If any Governmental Authority issues to Buyer, any Acquired Company the Company, Holdco or any Affiliate thereof of their respective Affiliates a written notice of its intent to audit, examine or conduct a proceeding, a written notice of its 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 pending Taxes or threatened the filing of a Tax audits, examinations, protest proceedings, assessments or claims that could give rise to Return (a claim for indemnity under Section 6.03 (an “Indemnifiable Tax LiabilityClaim”), Buyer shall promptly give written notice thereof to Parent (the “notify Seller of its receipt of such Tax Claim Notice”).
within five (b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (305) Business Days following receipt; provided however, that the failure of delivery Buyer to notify Seller of its receipt of a Tax Claim within five (5) Business Days shall not relieve Seller from liability pursuant to Section 6.03(a) except to the extent Seller is materially prejudiced as a consequence of such failure. Seller shall control any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer other matter with respect to each aspect a Pre-Closing Tax Period of the defense againstCompany or Holdco (a “Seller’s Tax Contest”); provided, that with respect to a Seller’s Tax Contest that involves United States federal or compromise 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 settlement ofHoldco and is in connection with the Seller’s Consolidated Tax Contest and, any such Indemnifiable provided further, with respect to a Seller’s Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permittedContest that is not a Seller’s Consolidated Tax Contest (i),the Buyer, at its sole cost and expense, shall have the right to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably participate in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable such Seller’s Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired CompanyContest; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer Seller shall not settle, compromise or abandon any settle such Seller’s Tax Proceeding Contest without obtaining the Buyer’s prior written consent of the Sellersconsent, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned, provided that, if Buyer does not consent to the settlement then (a) Buyer shall be obligated to assume the defense of such Seller’s Tax Contest; and (b) Buyer’s indemnification obligations relating to such Seller’s Tax Contest pursuant to this Agreement (including for the avoidance of doubt Section 6.03(a)) shall be limited to the amount of Taxes that Buyer would have been obligated to indemnify if such 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 (a “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. Notwithstanding anything in this Agreement to the 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 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 covenant to pay and shall not indemnify the Buyer Indemnitees from and against any Pre-Closing Taxes of the Company or Holdco resulting from such settlement or action.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Contests. (ai) Upon receipt by BuyerAfter the Closing, Denbury shall promptly notify the Matrix Common Shareholders in writing of the commencement of any Acquired Company Tax audit or administrative or judicial proceeding or of any demand or claim on Denbury, Matrix or any Affiliate thereof which, if determined adversely to the taxpayer or after the lapse of a written time, would be grounds for indemnification by the Matrix Common Shareholders. Such notice shall contain factual information (to the extent known to Denbury) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Taxing authority in respect of any such asserted Tax liability. If Denbury fails to give the Matrix Common Shareholders prompt notice of any pending or threatened an asserted Tax auditsliability, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that then (i) Buyer 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, the Matrix Common Shareholders shall consult with Sellers before taking not have any significant action obligation to indemnify for any an increase in connection with a Tax liability allocable to the Matrix Common Shareholders as a result of such Tax proceeding, and (ii) Buyer if the Matrix Common Shareholders are not so precluded from contesting, but such failure to give prompt notice results in an increase in the Tax liability allocable to the Matrix Common Shareholders as a result of such proceeding then any amount which the Matrix Common Shareholders are otherwise required to pay Denbury with respect to such liability shall be reduced by the amount of such increase 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 settleaffect 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.
(ii) Except as otherwise provided herein, Denbury shall direct any audit, claim or refund and administrative or judicial proceeding involving any asserted Tax liability 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 liability of a Pre-Closing Return, they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax liability, notify Denbury of their intent to do so and Denbury shall cooperate and shall cause Matrix and Subsidiaries to cooperate, in each phase of such Contest. If the Matrix Common Shareholders do not elect to direct the Contest of an asserted Tax liability 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 abandon contest, at its expense, such asserted liability. Neither Denbury nor the Matrix Common Shareholders may settle or compromise any such Tax Proceeding without obtaining Contest involving any asserted liability with respect to which indemnity may be sought from the prior written consent Matrix Common Shareholders over the objection of the Sellersparties not directing the Contest, which provided, however, that consent to settlement or compromise shall not be unreasonably withheld. In any event, conditioned or delayedboth Denbury and the 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 Matrix Common Shareholders.
Appears in 1 contract
Contests. After the Closing, Covenant shall promptly notify the Stockholders 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 Covenant or the Company which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for payment of Taxes or indemnification by the Stockholders under this Agreement. Such notice shall contain factual information (ato the extent known to Covenant or the Company) Upon receipt describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability. If Covenant fails to give the Stockholders prompt notice of an asserted Tax liability as required by Buyerthis section, then the Stockholders shall not have any Acquired Company or obligation to indemnify for any Affiliate thereof loss arising out of such asserted Tax liability under this Agreement; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent that the Indemnifying Party shall have been prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnified Person failed to give such notice). In the case of a written notice Tax audit or administrative or judicial proceeding (a "Contest") that relates to periods ending on or before the Closing Date, the Stockholders shall have the sole right to direct and control the conduct of such Contest. With respect to any pending or threatened Tax auditsContest for any period beginning before the Closing Date and ending after the Closing Date, examinations, protest proceedings, assessments or claims the Party which would bear the burden of the greater portion of the sum of the adjustments that could give rise to a claim may reasonably be anticipated for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers such period may elect to direct and control, through their Representativescounsel of its own choosing, and at their expensesuch Contest. If the Stockholders elect to direct any Contest or portion of a Contest, the compromise or contest, either administratively or in the courts, Stockholders shall promptly notify Covenant of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their its intent to do so, and Buyer Covenant shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (cooperate and shall be notified reasonably cause the Company to fully cooperate in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim each phase of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayedContest. If Sellers the Stockholders elect not to represent direct the interests Contest, Covenant shall assume control of an Acquired Companysuch Contest and such Contest shall be subject to indemnification in accordance with Article V hereof. Covenant shall keep the Stockholder Representative reasonably informed of the status of such Contest. In any case, Buyer neither Covenant and the Company on the one hand, or the Stockholders, on the other hand, may pay, settle or compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding asserted liability without obtaining the prior written consent of the Sellersother affected party, which consent shall may not be unreasonably withheld, conditioned conditioned, or delayed. In any event, any party may participate, at their own expense, in the Contest.
Appears in 1 contract
Contests. (a) Upon receipt by BuyerAfter the Closing, Purchaser shall promptly notify Seller in writing of the commencement of any Acquired Company Tax audit or administrative or judicial proceeding or of any demand or claim on Purchaser or any Affiliate thereof Company which, if determined adversely to the taxpayer or after the lapse of a written time, would be grounds for indemnification under Section
7.01. Such notice shall contain factual information (to the extent known) 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 Purchaser fails to give Seller prompt notice of an asserted Tax liability as required by this Section 7.03, then (a) if Seller is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Seller shall not have any pending or threatened obligation to indemnify for any loss arising out of such asserted Tax auditsliability, examinationsand (b) if Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to Seller, protest proceedings, assessments or claims that could give rise then any amount which Seller is otherwise required to a claim for indemnity under pay Purchaser pursuant to Section 6.03 (an “Indemnifiable Tax Liability”), Buyer 7.01 with respect to such liability shall promptly give written notice thereof to Parent (be reduced by the “Tax Claim Notice”)amount of such detriment.
(b) Subject to Section 6.06(c), Sellers Seller may elect to controldirect, through their Representatives, counsel of its own choosing and at their its own expense, the compromise any audit, claim for refund and administrative or contestjudicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 7.01 (any such audit, either administratively claim for refund or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability is referred to herein as a "Contest"). If Sellers elect Seller elects to so represent the interests of an Acquired Company or Buyerdirect a Contest, they it shall within thirty (30) Business Days 30 days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requires) liability notify Buyer Purchaser of their its intent to do so, and Buyer Purchaser shall cooperate and shall cause each Company to cooperate, at the sole expense of SellersSeller, in each phase of such Contest. Seller shall keep Purchaser informed regarding the defense against, or compromise or settlement of, progress but not any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each substantive aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, Contest which Seller has elected to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayeddirect. If Sellers elect Seller elects not to represent direct the interests Contest, fails to notify Purchaser of an Acquired Companyits election as herein provided or contests its obligation to indemnify under Section 7.01, Buyer Purchaser or the relevant Company may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlcontest, at its own expense, such asserted liability. However, in such case, neither Purchaser nor such Company may settle or compromise any Tax proceeding for a Straddle Period with respect to any Acquired Companyasserted liability over the objection of Seller; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, consent to settlement or compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld. In any event, conditioned or delayedSeller may participate, at its own expense, in the Contest. If Seller chooses to direct the Contest, Purchaser shall promptly empower and shall cause the relevant Company promptly to empower (by power of attorney and such other documentation as may be appropriate) such representatives of Seller as it may designate to represent Purchaser and such Company in the Contest insofar as the Contest involves an asserted Tax liability for which Seller would be liable under Section 7.01.
Appears in 1 contract
Contests. (a) Upon Acquiror shall promptly notify the Member Representative in writing upon receipt by Buyer, any Acquired Company Acquiror or any Affiliate thereof of a Acquiror (including the Acquired Companies after the Closing Date) of written notice of any pending inquiries, claims, assessments, audits or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise similar events with respect to Taxes relating to a claim taxable period ending on or before the Closing Date for indemnity under Section 6.03 which the Seller Parties could reasonably be expected to be liable (an any such inquiry, claim, assessment, audit or similar event, a “Indemnifiable Tax LiabilityMatter”), Buyer . The Member Representative shall promptly give written notice thereof have the authority to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an the Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and Companies with respect to any such claim that could adversely affect an Acquired CompanyTax Matter before the IRS, Buyer any other taxing authority, any other Governmental Authority or any of their respective affiliates with respect court and shall have the sole right to any Post-Closing Tax Period, Sellers shall not settlecontrol the defense, compromise or abandon other resolution of any matter related Tax Matter, including responding to Indemnifiable inquiries, filing Tax Liability Returns 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, a Tax Matter; provided, that the Member Representative shall not enter into any settlement of or otherwise compromise any Tax Matter that materially adversely affects or may materially adversely affect the Tax liability of Acquiror, or the Acquired Companies for any period ending after the Closing Date, including the portion of the Straddle Period that is after the Closing Date, without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the SellersAcquiror, which consent shall not be unreasonably withheld, conditioned or delayed. The Member Representative shall keep Acquiror informed with respect to the commencement, status and nature of any Tax Matter. The Member Representative shall, in good faith, allow Acquiror, at Acquiror’s sole expense, to make non-binding comments to Member Representative regarding the conduct of or positions taken in any such proceeding.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Valeant Pharmaceuticals International)
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”)After the Closing Date, Buyer shall promptly give written notice thereof notify Seller in writing within ten (10) days of the date a claim is made or threatened in writing by any Taxing Authority that, if successful, may reasonably be expected to Parent result in an indemnity payment by Seller under Section 11.1 (the a “Tax Claim NoticeClaim”). 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, and shall include copies of any notice or other document received from any Taxing Authority in respect of any such asserted Tax liability. Failure by Buyer to give such notice to the Seller shall not relieve the Seller of any liability that it may have on account of its indemnification obligation under this Section 11, except to the extent that Seller demonstrates that the defense of such claim is prejudiced by Buyer’s failure to give such notice.
(b) Subject Seller will have the right, at its option, upon timely notice to Section 6.06(c)Buyer, Sellers may elect to control, through their Representatives, and assume at their expense, the compromise or contest, either administratively or in the courts, its own expense control of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company Audit or Buyer, they shall within thirty (30) Business Days of delivery other defense of any Tax Claim Notice (other than a Tax Claim relating solely to Taxes of ▇▇▇▇ 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 reasonably sooner, if for which Seller would be liable pursuant to Section 11.1. Costs of defending or contesting such Tax Claims are to be borne by Seller unless the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent Claim relates to do so, and Buyer shall cooperate, at the sole expense of Sellersa Straddle Period, in which event such costs shall be fairly apportioned as described below. Buyer and ▇▇▇▇ at their own expense each shall cooperate with Seller in contesting any Tax Claim, which cooperation shall include the defense againstretention 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 compromise or settlement of, explanation of any claim in any such proceedingmaterial provided hereunder. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of Notwithstanding the foregoing, Buyer Seller shall be permitted, at its expense, neither consent nor agree to be represented at each conference, hearing or meeting with representatives the settlement of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and Claim with respect to any such claim that could adversely affect an Acquired Company, Buyer liability for Taxes in excess of US Dollars ten thousand (USD 10,000) on the part of ▇▇▇▇ or any affiliated group (as defined in Section 1504(a) of their respective affiliates with respect to the Code) of which ▇▇▇▇ is a member for any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability Period without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditionedwithheld, withheld conditioned or delayed. If Sellers elect not to represent Neither Seller, nor any Affiliate of Seller, shall file an amended Tax Return that may increase the interests liability for Taxes of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable ▇▇▇▇ for any Post-Closing Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the SellersBuyer, which consent shall not be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, unless otherwise authorized by Seller in writing, only Seller is authorized to file any Tax return respecting ▇▇▇▇ and any of its Subsidiaries for any pre-Closing Tax period, including the portion of the Tax year ending on the Closing Date. Buyer and Seller shall jointly control all proceedings taken in connection with any Tax Claims relating solely to a Straddle Period of ▇▇▇▇ 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.
Appears in 1 contract
Sources: Stock Purchase Agreement (Cardiotech International Inc)
Contests. (a) Upon receipt After the Closing, the Purchaser shall promptly notify the Seller in writing of any demand or claim received by Buyer, the Purchaser or the Company from any Acquired Company Tax authority or other party with respect to Taxes for which the Seller is liable pursuant to Section 7.1(a). Such notice shall contain factual information (to the extent known) describing the asserted Tax liability in reasonable detail and shall include copies of any Affiliate thereof notice or other document received from any Tax authority in respect of a written any such asserted Tax liability. If the Purchaser fails to give the Seller prompt notice of any pending an asserted Tax liability as required by this Section 7.3, then (i) if the Seller (or threatened its designee) is precluded by the failure to give prompt notice from contesting the asserted Tax auditsliability in both the administrative and judicial forums, examinationsand the Seller is materially prejudiced as a result, protest proceedings, assessments then the Purchaser shall have sole responsibility for such Tax liability or claims that could (ii) if the Seller (or its designee) is not precluded from contesting but such failure to give rise prompt notice results in a detriment to a claim for indemnity under Section 6.03 the Seller (an “Indemnifiable Tax Liability”or its designee), Buyer then any amount that the Seller is otherwise required to pay to the Purchaser pursuant to Section 7.1 with respect to such liability shall promptly give written notice thereof to Parent (be reduced by the “Tax Claim Notice”)amount of such detriment.
(b) Subject to Section 6.06(c), Sellers The Seller (or its designee) may elect to controlcontrol the conduct, through their Representatives, counsel of its own choosing and at their its own expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 7.1(a) (any such audit, claim for refund or proceeding relating to an asserted Tax Liabilityliability is referred to herein as a "Contest"). If Sellers elect the Seller (or its designee) elects to so represent the interests of an Acquired Company or Buyercontrol a Contest, they it shall within thirty (30) Business Days 30 calendar days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requires) liability notify Buyer the Purchaser of their its intent to do so, the Seller (or its designee) shall have all rights to settle, compromise and/or concede such asserted liability and Buyer the Purchaser shall cooperate and shall cause the Company or any of its successors to cooperate, at the sole reasonable expense of Sellersthe Seller, in each phase of such Contest; provided, however, that the defense againstSeller shall not, or other than in good faith based on the merits, enter into any compromise or settlement of, any claim of such Contest that would result in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect Tax detriment to each aspect of the defense against, Purchaser or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect the Seller elects not to represent control the interests Contest, fails to notify the Purchaser of an Acquired Companyits election as herein provided or contests its obligation to indemnify under Section 7.1(a), Buyer the Purchaser or the Company may pay, compromise or contest such Indemnifiable Tax Liability in any contest, at its own expense (to be reimbursed by the Seller to the extent of reasonable manner it deems appropriate (in its sole discretionthird-party expenses), and Sellers such asserted liability. However, in such case, neither the Purchaser nor the Company may settle or compromise any asserted liability over the objection of the Seller; provided, however, that consent to settlement or compromise shall remain fully liable for such Indemnifiable Tax Liability.
not be unreasonably withheld. In any event, the Seller (cor its designee) Buyer shall controlmay participate, at its own expense, in the Contest. If the Seller (or its designee) chooses to control the Contest, the Purchaser shall promptly empower and shall cause the Company or any Tax proceeding for a Straddle Period with respect of its successors promptly to any Acquired Company; provided, however, that empower (iby power of attorney and such other documentation as may be appropriate) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent representatives of the SellersSeller (or its designee) as it may designate to represent the Purchaser, the Company or any of their successors in the Contest insofar as the Contest involves an asserted Tax liability for which consent shall not the Seller would be unreasonably withheld, conditioned or delayedliable under Section 7.1(a).
Appears in 1 contract
Sources: Stock Purchase Agreement (Information Holdings Inc)
Contests. (a) Upon receipt by Buyer, If any Acquired Governmental Authority issues to ▇▇▇▇▇▇▇▇ or the Company or any Affiliate thereof of a written notice of its intent to audit, examine or conduct a proceeding, a written notice of its determination of an objection to an assessment with respect to Taxes or Tax Returns of ▇▇▇▇▇▇▇▇ or the Company for a Pre-Closing Tax Period or a Straddle Period, or a written notice or inquiry with respect to any pending Taxes or threatened the filing of a Tax audits, examinations, protest proceedings, assessments Return for a Pre-Closing Tax Period or claims that could give rise to a claim for indemnity under Section 6.03 Straddle Period (an a “Indemnifiable Tax LiabilityClaim”), Buyer shall promptly give written notice thereof to Parent (the “notify Seller of its receipt of such Tax Claim Notice”).
within ten (b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (3010) Business Days following receipt, provided however, that the failure of delivery the Buyer to notify Seller of its receipt of a Tax Claim within ten (10) Business Days shall not relieve the Seller from liability pursuant to Section 6.03(a) except to the extent the Seller is materially prejudiced as a consequence of such failure. Seller shall control any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer other matter with respect to each aspect a Pre-Closing Tax Period of ▇▇▇▇▇▇▇▇ or the defense againstCompany (a “Seller’s Tax Contest”), or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permittedprovided that Buyer, at its sole cost and expense, shall have the right to be represented at each conference, hearing or meeting participate in any Seller’s Tax Contest that does not involve income Taxes and provided further that the Seller shall provide the Buyer with representatives a copy of the pertinent taxing authority 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 ▇▇▇▇▇▇▇▇ or the Company. The Buyer shall control any Tax Claim that is not a Seller’s Tax Contest (a “Buyer’s Tax Contest”), provided that Seller, at its sole cost and expense, shall be notified reasonably have the right to participate in advance thereof)any Buyer’s Tax Contest that relates to a Straddle Period Return. Sellers shall promptly notify Buyer The party controlling a Tax Claim described in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers the preceding sentence shall not settle, compromise or abandon any matter related agree to Indemnifiable settle such Tax Liability Claim if such settlement could affect the Tax liability of the other party without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellersother party, which consent shall not be unreasonably withheld, conditioned or delayed, provided that if any party (the “First Party”) shall reasonably withhold consent for a settlement, the other party (the “Second Party”) shall be entitled to enter into such settlement 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) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice Seller shall have the right to control the conduct of any pending audit or threatened administrative or judicial proceeding with respect to any consolidated federal income Tax auditsReturn (or similar combined, examinations, protest proceedings, assessments consolidated or claims unitary state income Tax Return) that could give rise includes Seller or the Companies with respect to a claim for indemnity under Section 6.03 taxable period of the Companies ending on or before the Closing Date (an a “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim NoticePre-Closing Consolidated Audit”).
(b) Subject With respect to Section 6.06(cany audit or administrative or judicial proceeding with respect to Taxes of the Companies (other than a Pre-Closing Consolidated Audit), Sellers Purchaser shall promptly notify Seller in writing upon receipt by any of the Companies of a written notice of any audit or administrative or judicial proceeding with respect to Taxes of any of the Companies which Seller may elect have liability (a “Tax Contest Claim”); provided, however, no failure or delay by Purchaser to control, through their Representatives, provide notice of a Tax Contest Claim shall reduce or otherwise affect the obligation of Seller hereunder except to the extent Seller is actually prejudiced thereby. Purchaser and at their expense, the compromise or contest, either administratively or Seller shall cooperate with each other in the courts, conduct of any Indemnifiable Tax LiabilityContest Claim. If Sellers elect Seller shall have the right to so represent control the interests conduct of an Acquired Company any Tax Contest Claim for a period that ends on or Buyer, they shall prior to the Closing Date (a “Pre-Closing Tax Claim”) if Seller provides Purchaser with notice of its election to control such claim within thirty (30) Business Days days of delivery Purchaser notifying Seller of any such Tax Contest Claim, provided if the resolution of such Pre-Closing Tax Claim Notice (or could reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent be expected to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect have an Acquired Company, Buyer adverse effect on Purchaser or any of their respective affiliates with respect to any Postthe Companies for a period that ends after the Closing Date then: (i) Seller shall keep Purchaser informed regarding the progress and substantive aspects of such Pre-Closing Tax PeriodClaim, Sellers (ii) Purchaser shall be entitled to participate in any Pre-Closing Tax Claim and (iii) Seller shall not settle, compromise or abandon settle any matter related to Indemnifiable Pre-Closing Tax Liability Claim without obtaining the prior written consent of BuyerPurchaser’s consent, which consent shall not be unreasonably conditionedwithheld, withheld conditioned or delayed. If Sellers Seller does not elect not to represent control a Pre-Closing Tax Claim within the interests time period set forth above, then Purchaser shall be entitled to control all aspects of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liabilityclaim.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with With respect to any Acquired Company; providedTax Contest Claim for a period that begins before and ends after the Closing Date (a “Straddle Tax Claim”), howeverPurchaser shall control such claim, provided that (iA) Buyer Purchaser shall consult with Sellers before taking keep Seller informed regarding the progress and substantive aspects of such Straddle Tax Claim, (B) Seller shall be entitled to participate in any significant action in connection with such Straddle Tax proceeding, Claim and (iiC) Buyer Purchaser shall not settle, compromise or abandon any such settle a Straddle Tax Proceeding Claim without obtaining the prior written consent of the SellersSeller’s consent, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”)After the Closing, Buyer shall promptly notify Goldcorp USA 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 Buyer, its Affiliates, Marigold or any subsidiary which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by Goldcorp USA. Such notice shall contain factual information (to the extent known to Buyer, its Affiliates, Marigold or any subsidiary) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability. If Buyer fails to give written Goldcorp USA prompt notice thereof of an asserted Tax liability as required by this Section 10.4, then Goldcorp USA shall not have any obligation to Parent (indemnify for any loss arising out of such asserted Tax liability, but only to the “Tax Claim Notice”)extent that failure to give such notice results in a detriment to Goldcorp USA.
(b) Subject In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to Section 6.06(ctaxable periods ending on or before the Closing Date, Goldcorp USA shall have the sole right, at its expense, to control the conduct of such Contest.
(c) With respect to a taxable period that begins prior to the Closing Date and ends after the Closing (a “Straddle Period”), Sellers Goldcorp USA may elect to direct and control, through their Representativescounsel of its own choosing, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable contest involving any asserted Tax Liabilityliability with respect to which indemnity may be sought from Goldcorp USA. If Sellers elect Goldcorp USA elects to so represent the interests of an Acquired Company or Buyerdirect a Contest, they Goldcorp USA shall within thirty (30) Business Days 90 days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requires) liability notify Buyer of their its intent to do so, and Buyer shall cooperate and shall cause Marigold and its Affiliates to fully cooperate, at the sole expense of SellersGoldcorp USA’s expense, in each phase of such Contest. If Goldcorp USA elects not to direct the defense againstContest, Buyer, Marigold or any subsidiary may assume control of such Contest (at Buyer’s expense). However, in such case, none of Buyer, Marigold or any subsidiary may settle or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability asserted liability without obtaining the prior written consent of BuyerGoldcorp USA; provided, which however, that consent to settlement or compromise shall not be unreasonably conditionedwithheld. In any event, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Goldcorp USA may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlparticipate, at its own expense, in the Contest.
(d) Buyer and Sellers agree to cooperate, and Buyer agrees to cause Marigold to cooperate, in the defense against or compromise of any Tax proceeding for claim in any Contest.
(e) For purposes of this Agreement, Taxes allocable to the portion of a Straddle Period with respect ending on the Closing Date (i) in the case of any Taxes other than Income Taxes, Nevada State Net Proceeds of Mineral Taxes and Taxes based on receipts or sales or that are otherwise transactionally based shall be deemed to any Acquired Companybe the amount of such Tax for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the taxable period prior to and ending on the Closing Date and the denominator of which is the number of days in the entire Straddle Period, (ii) in the case of Taxes based on receipts or sale or that are otherwise transactionally based, other than Income Taxes and the Nevada State Net proceeds of Mineral Taxes, shall be deemed equal to the amount which would be payable if the relevant Straddle Period ended on the Closing Date, provided that all permitted allowances, credits, exemptions and deductions that are normally computed on the basis of an entire year period shall accrue on a daily basis and shall be allocated between the pre-Closing portion of the Straddle Period and the post-Closing portion of the Straddle Period in proportion to the number of days in each such period; provided, however, that any credits relating to a Straddle Period shall be taken into account as though the relevant taxable period ended on the Closing Date and provided further that all determinations necessary to give effect to the foregoing allocations shall be made in a manner consistent with prior practices of Marigold, except where such practice is not consistent with applicable legal requirements. In the case of Income Taxes: (ix) Buyer Goldcorp USA or its ultimate U.S. parent corporation with which it files a consolidated return for federal income tax purposes shall consult with Sellers before taking include the income of Marigold (including any significant action in connection with deferred items triggered into income by Treasury Regulation 1.1502-13 and any excess loss account taken into income under Treasury Regulation 1.1502-19) on its consolidated federal Income Tax Returns through the end of the Closing Date and pay any Income Taxes attributable to such Tax proceedingincome, and (iiy) such income of Marigold shall be apportioned to the period up to and including the Closing Date and the period after the Closing Date by closing the books of Marigold as of the end of the Closing Date. In the case of Nevada State Net Proceeds of Mineral Taxes, such net proceeds of Marigold (including without limitation, depreciation and amortization deductions) shall be apportioned to the period up to and including the Closing Date and the period after the Closing Date by closing the books of Marigold as of the end of the Closing Date. Marigold and Buyer shall not settlefurnish Tax information to Goldcorp USA for inclusion in such consolidated federal Income Tax Return for the period that includes the Closing Date in accordance with Goldcorp USA’s past custom and practice. Notwithstanding the foregoing, compromise any penalty, interest or abandon any addition to Tax shall be allocated to the party that bears the liability for the Tax to which such penalty, interest or addition to Tax Proceeding without obtaining the prior written consent relates, regardless of the Sellerswhen such penalty, which consent shall not be unreasonably withheld, conditioned interest or delayedaddition to Tax is assessed.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Silver Standard Resources Inc)
Contests. (ai) Upon receipt by BuyerAfter the Closing, each party shall promptly notify the other party of any Acquired Company demand, claim or any Affiliate thereof notice of the commencement of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer Proceeding received with respect to each aspect of the defense against, Taxes for which OpCo or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, is liable pursuant to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Companythis Agreement; provided, 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 extent that the other party is materially prejudiced thereby. Such notice shall contain factual information (ito the extent known) Buyer describing the asserted Tax liability and shall consult with Sellers before taking include copies of the relevant portion of any significant action notice or other document received from any Tax Authority or any other Person in connection with respect of any such asserted Tax proceeding, and liability.
(ii) At OpCo’s request and expense, Buyer shall not settlecontest (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 elects, compromise or abandon OpCo shall control the conduct, through counsel of its own choosing and at its own expense, of any Tax Proceeding involving any asserted Pre-Closing Tax Period Tax liability with respect to the Company and/or its Subsidiaries relating to Pre-Closing Tax Period Taxes for which OpCo is liable pursuant to Section 6.1(a)(i); provided that Buyer and its Affiliates shall have the right to participate in such Tax Proceeding, including through counsel of their choosing, at their own expense. 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 accept any proposed adjustment or enter into any settlement or agreement in compromise regarding any Tax Proceeding controlled by OpCo without obtaining the prior written consent of the SellersBuyer, which consent shall not be unreasonably withheld, conditioned or delayed.
(iii) In the case of a Tax Proceeding that relates to a Straddle Period, Buyer shall control the conduct of such Tax Proceeding, but OpCo shall have 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 appropriate Tax Authority or other applicable third party is due; provided that OpCo 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. 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), 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 other 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. (a) Upon receipt by BuyerAfter the Closing, Purchaser shall -------- promptly notify Seller in writing of the commencement of any Acquired Company Tax audit or administrative or judicial proceeding or of any demand or claim on Purchaser or any Affiliate thereof Company which, if determined adversely to the taxpayer or after the lapse of a written time, would be grounds for indemnification under Section
7.01. Such notice shall contain factual information (to the extent known) 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 Purchaser fails to give Seller prompt notice of an asserted Tax liability as required by this Section 7.03, then (a) if Seller is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Seller shall not have any pending or threatened obligation to indemnify for any loss arising out of such asserted Tax auditsliability, examinationsand (b) if Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to Seller, protest proceedings, assessments or claims that could give rise then any amount which Seller is otherwise required to a claim for indemnity under pay Purchaser pursuant to
Section 6.03 (an “Indemnifiable Tax Liability”), Buyer 7.01 with respect to such liability shall promptly give written notice thereof to Parent (be reduced by the “Tax Claim Notice”)amount of such detriment.
(b) Subject to Section 6.06(c), Sellers Seller may elect to controldirect, through their Representatives, counsel of its own choosing and at their its own expense, the compromise any audit, claim for refund and administrative or contestjudicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 7.01 (any such audit, either administratively claim for refund or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability is referred to herein as a "Contest"). If Sellers elect Seller elects to so represent the interests of an Acquired Company or Buyerdirect a Contest, they it shall within thirty (30) Business Days 30 days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature -------- receipt of the Indemnifiable notice of asserted Tax Liability so requires) liability notify Buyer Purchaser of their its intent to do so, and Buyer Purchaser shall cooperate and shall cause each Company to cooperate, at the sole expense of SellersSeller, in each phase of such Contest. Seller shall keep Purchaser informed regarding the defense against, or compromise or settlement of, progress but not any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each substantive aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, Contest which Seller has elected to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayeddirect. If Sellers elect Seller elects not to represent direct the interests Contest, fails to notify Purchaser of an Acquired Companyits election as herein provided or contests its obligation to indemnify under Section 7.01, Buyer Purchaser or the relevant Company may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlcontest, at its own expense, such asserted liability. However, in such case, neither Purchaser nor such Company may settle or compromise any Tax proceeding for a Straddle Period with respect to any Acquired Companyasserted liability over the objection of Seller; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, consent to settlement or compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be -------- ------- unreasonably withheld. In any event, conditioned or delayedSeller may participate, at its own expense, in the Contest. If Seller chooses to direct the Contest, Purchaser shall promptly empower and shall cause the relevant Company promptly to empower (by power of attorney and such other documentation as may be appropriate) such representatives of Seller as it may designate to represent Purchaser and such Company in the Contest insofar as the Contest involves an asserted Tax liability for which Seller would be liable under Section 7.01.
Appears in 1 contract
Contests. (a) Upon receipt by BuyerAfter the Closing Date, any Acquired Company or any Affiliate thereof the Purchaser shall promptly notify the Seller in writing of a written notice the commencement of any pending Tax audit or threatened Tax auditsadministrative or judicial proceeding or of any demand or claim on the Purchaser or the Company which, examinationsif determined adversely to the taxpayer or after the lapse of time, protest proceedings, assessments or claims that could give rise to a claim would be grounds for indemnity indemnification by the Seller under Section 6.03 7.01 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”"INDEMNIFICATION ITEM").
(b) Subject In the case of a Tax audit or administrative or judicial proceeding (or part thereof) ("PROCEEDING") that relates solely to an Indemnification Item for which the Seller is exclusively liable under Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense7.01 (a "CONTEST") , the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they Seller shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at have the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permittedright, at its expense, to be represented at each conferencecontrol the conduct of such Contest that relates solely to the Indemnification Item; PROVIDED, hearing HOWEVER, that the Seller shall
(i) obtain the Purchaser's written consent to any advisors (including any law or meeting with representatives of accounting firm) retained by the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and Seller with respect to any such claim that could adversely affect an Acquired Company, Buyer or Contest regarding any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of BuyerIndemnification Item, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable which consent is deemed to have been given for such Indemnifiable Tax Liability.KPMG, LLP and its affiliates and any successor firms, and Shearman & Sterling and any successor firms,
(cii) Buyer shall control, at its own expense, keep the Purchaser informed of the progress of any Tax proceeding for a Straddle Period with respect Contest,
(iii) allow the Purchaser to review and comment on all materials to be submitted to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action Governmental Authority in connection with such Tax proceedingany Contest,
(iv) provide the Purchaser with reasonable notice in advance of all meetings, telephone conversations and other communications ("COMMUNICATIONS") with any 40 Governmental Authority in connection with any Contest, and allow Purchaser's representatives to participate in any Communications, and
(iiv) Buyer shall not settle, settle or compromise (or abandon offer to settle or compromise) any such Tax Proceeding Contest without obtaining the prior written consent of the SellersPurchaser, which consent shall not be unreasonably withheld, conditioned withheld or delayed. However, for any Contest that does not impact Taxes of the Purchaser, the LLC or their respective successors or Affiliates for periods after the Closing, the Purchaser will (a) not have any of the rights listed in subsections (i) through (v) above and (b) be deemed to have consented to any settlement or compromise proposal by the Seller. The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company to cooperate, in the defense against or compromise of any claim in any audit or proceeding, including, by executing appropriate powers of attorney empowering representatives of the Seller. Any expenses or fees incurred by the Purchaser in connection with the activities described in subsections (i) through (v) above shall not be payable or indemnified by Seller.
(c) In the case of a Proceeding that relates to an issue where both the Seller and the Purchaser would reasonably be expected to have liability and the Purchaser's reasonably anticipated liability with respect to such issue exceeds the Seller's reasonably anticipated liability with respect to such issue, the Purchaser shall have the sole right, at its expense, to control the conduct of such Proceeding; PROVIDED, HOWEVER, that Seller shall have the same rights with respect to such Proceeding as are granted to the Purchaser with respect to a Contest pursuant to Section 7.03(b)(i) through (v) (except that the deemed consent to representation by Shearman & Sterling (and successors) in Section 7.03(b)(i) shall be replaced by deemed consent to representation by Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and affiliates (and successors)).
(d) In the case of a Proceeding that relates to an issue where both the Seller and the Purchaser would reasonably be expected to have liability with respect to that issue and the Seller's reasonably anticipated liability with respect to such issue exceeds the Purchaser's reasonably anticipated liability with respect to such issue, the Seller shall have the sole right, at its expense, to control the conduct of such Proceeding; PROVIDED, HOWEVER, that Purchaser shall have the same rights with respect to such Proceeding as are granted to the Purchaser with respect to a Contest pursuant to Section 7.03(b)(i) through (v).
Appears in 1 contract
Sources: Purchase Agreement (Credit Suisse First Boston Usa Inc)
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise Buyer agrees to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, Sellers’ Representative of the compromise or contest, either administratively or in the courts, receipt of any Indemnifiable Tax Liability. If Sellers elect to so represent written notice by the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement ofCompany, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired CompanyCompany Subsidiary, Buyer or any of their respective affiliates Buyer’s Affiliates which involves the assertion of any claim for which an indemnity will be sought by Buyer pursuant to this ARTICLE VII (a “Tax Claim”); provided, that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder except and only to the extent that Sellers forfeit material rights or defenses by reason of such failure. The Sellers’ Representative may, at the Sellers’ own expense, participate in and assume the defense of any Tax Claim; provided, however, that the Sellers’ Representative acknowledges in writing the Sellers’ responsibility to indemnify and hold harmless the Buyer Indemnitees with respect to any Post-Closing all Taxes at issue in such Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayedClaim. If Sellers elect not to represent the interests Sellers’ Representative assumes such defense, the Sellers’ Representative shall control all proceedings taken in connection with such Tax Claim (including selection of an Acquired Companycounsel) and may, Buyer may payin its reasonable discretion, compromise pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Taxing authority with respect thereto, and may, in its reasonable discretion, either pay the Tax claimed and s▇▇ for refund where applicable law permits such refund suits or contest such Indemnifiable Tax Liability the tax claim in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Companypermissible manner; provided, however, that (i) Buyer shall consult with Sellers before taking have the right to participate in any significant action in connection with such Tax proceedingClaim and the Sellers’ Representative shall provide Buyer with copies of all written communications relating to the Tax Claim, and (ii) the Sellers’ Representative shall keep Buyer informed regarding the progress of such Tax Claim and consult with Buyer with respect to any issue that could have an adverse effect on Buyer, the Company or any Company Subsidiary and (iii) the Sellers’ Representative shall not settle, compromise settle or abandon otherwise resolve any such Tax Proceeding Claim (or any issue raised in any Tax Claim) without obtaining the prior written consent of the Sellers, Buyer (which consent shall not be unreasonably withheld, conditioned withheld or delayed).
Appears in 1 contract
Contests. (a) Upon In respect of the indemnification provided under Section 7.1(a), promptly after receipt by Buyer, any Acquired Company or any Affiliate thereof an Indemnitee of a written notice of any pending or threatened Tax auditsClaim, examinationssuch Indemnitee shall, protest proceedings, assessments or claims that could give rise to if a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly indemnification in respect thereof is to be made against Lessee give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c)Lessee. So long as no Lease Event of Default is continuing, Sellers Lessee at its own expense, may elect to controlassume the defense of any such Claim through its own counsel, through their Representativeswhich shall be subject to the reasonable approval of the Indemnitee, on behalf of the Indemnitee (with full right of subrogation to the Indemnitee's rights and at their expensedefenses). Lessee must indicate its election to assume such defense by written notice to the Indemnitee within 30 days following receipt of Indemnitee's notice of the Claim, the compromise or contest, either administratively or in the courtscase of a third party claim which requires a shorter time for response then within such shorter period as specified in the Indemnitee's notice of Claim; provided that such Indemnitee has given Lessee notice thereof. If Lessee denies liability or fails to respond to the notice within the time period set forth above, the Indemnitee may defend or compromise the Claim as it deems appropriate without prejudice to any of Indemnitee's rights hereunder and with no further obligation to inform Lessee of the status of the Claim and no right of Lessee to approve or disapprove any actions taken in connection therewith by the Indemnitee. If Lessee shall have elected to assume the defense of any Indemnifiable Tax Liabilitysuch Claim, then upon the request of Lessee, the Indemnitee requesting payment of indemnity under Section 7.1(a) shall promptly furnish Lessee with copies of any records or documents pertaining to the matter to be indemnified and, to the extent known by such Indemnitee, a reasonably LSI Trust No. 2001-A Participation Agreement detailed explanation of the circumstances giving rise to the claim of indemnification and the determination of the amount of the requested indemnity payment. Upon payment in full to Indemnitee of any indemnity pursuant to Section 7.1(a), Lessee shall be subrogated to any right of Indemnitee in respect of the matter against which such indemnity has been paid. If Sellers elect Lessee shall have elected to so represent assume the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery defense of any Tax Claim Notice (or reasonably soonersuch Claim, if upon the nature written request at any time and from time to time of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do soLessee, and Buyer shall cooperateIndemnitee shall, at the sole expense of SellersLessee, take such reasonable actions and execute such documents as are necessary or reasonably appropriate to assist Lessee in the preservation and enforcement against third parties of Lessee's right of subrogation hereunder. The Indemnitee may employ separate counsel in any such Claim and participate in the defense againstthereof, but the fees and expenses of such counsel shall be at the expense of the Indemnitee unless the Indemnitee shall have been advised by its counsel that a conflict of interest exists in Lessee's counsel's representations of the Indemnitee and Lessee, in which case the fees and expenses of such Indemnitee's counsel shall be for the account of Lessee. All fees and expenses shall be paid periodically as incurred. So long as no Lease Event of Default shall have occurred and be continuing, Lessee shall not be liable for any settlement of any such Claim effected without its consent unless Lessee shall fail to, or compromise or settlement ofelect in writing not to, assume the defense thereof in which case the Indemnitee, without waiving any claim in rights to indemnification hereunder, may defend such Claim and enter into any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability thereof without obtaining the prior written consent of BuyerLessee. Lessee shall not, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall (not to be unreasonably withheld) of the Indemnitee, conditioned effect any settlement of any such Claim unless such settlement includes an unconditional release of the Indemnitee from all liabilities that are the subject of such Claim. The parties agree to cooperate in any defense or delayedsettlement of any such Claim and to give each other reasonable access to all information relevant thereto subject to appropriate confidentiality agreements. The parties will similarly cooperate in the prosecution of any claim or lawsuit against any third party.
Appears in 1 contract
Contests. (a) Upon receipt by BuyerAfter the Closing Date, any Acquired Company the Purchaser or any Affiliate thereof Company shall promptly notify each Seller, and a Seller shall promptly notify the Purchaser, upon learning of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on any Seller, the Purchaser or any Company which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 7.01. Such notice shall be in writing and shall contain factual information (to the extent known to the Sellers, Purchaser or such Company, as the case may be) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability. If a written party fails to give prompt notice of an asserted Tax liability as required by this Section 7.03, then if the indemnifying party is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then the indemnifying party shall not have any pending or threatened obligation to indemnify for any loss arising out of such asserted Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”)liability.
(b) Subject to Section 6.06(c), Sellers Any Seller may elect to controldirect, through their Representatives, counsel of 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 7.01 (any such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "Contest"). However, the compromise or contestPurchaser may, either administratively or at its own expense, continue to participate in the courts, of any Indemnifiable Tax Liabilitycontest. If Sellers elect any Seller elects to so represent the interests direct a Contest, it shall, within 30 calendar days of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable Purchaser's notice of asserted Tax Liability so requires) liability, notify Buyer the Purchaser of their its intent to do so, and Buyer the Purchaser shall cooperate and shall cause each Company or its respective successor or successors to cooperate, at the sole expense of Sellerssuch Seller's expense, in each phase of such Contest. If no Seller elects to direct the defense againstContest or fails to notify the Purchaser of its election as herein provided, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer Purchaser or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Company may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlcontest, at its own expense, such asserted Tax liability. However, in such case, neither the Purchaser nor any Company may settle or compromise any asserted Tax proceeding for a Straddle Period with respect to liability over the objection of any Acquired CompanySeller; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer consent to settlement or compromise shall not settlebe unreasonably withheld. In any event, compromise any Seller may participate, at its own expense, in the Contest. If any Seller chooses to direct the Contest, the Purchaser shall promptly empower and shall cause each Company or abandon any its respective successor promptly to empower (by power of attorney and such other documentation as may be necessary and appropriate) the designated representatives of such Seller to represent the Purchaser or such Company or its successor in the Contest insofar as the Contest involves an asserted Tax Proceeding without obtaining liability for which such Seller would be liable under Section 7.01. Notwithstanding the foregoing, the Purchaser's prior written consent of the Sellersconsent, (which consent shall not be unreasonably withheld) shall be required for any settlement of a contest that increase items of income, conditioned or delayeddecreases items of loss, deduction or credit for the Purchaser or any Company in periods after the Closing Date.
Appears in 1 contract
Sources: Purchase Agreement (Carematrix Corp)
Contests. (ai) Upon receipt by BuyerIf the Purchaser, any Acquired the Company or any Affiliate thereof Subsidiary receives actual knowledge of a written claim, demand, assessment (including a notice of proposed assessment) or other assertion with respect to Taxes of the Company and any pending or threatened Subsidiary (“Tax audits, examinations, protest proceedings, assessments or claims that could Claim”) which would give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”)indemnification against the Sellers, Buyer shall the Purchaser shall, promptly give after receiving such knowledge, provide written notice thereof to Parent (the “Sellers’ Representative which written notice will set out the nature and the amount of the Tax Claim Notice”)Claim.
(bii) Subject The omission to so notify the Sellers’ Representative shall not relieve the Significant Shareholders from any duty to indemnify and hold harmless which might otherwise exist with respect to such Tax Claim unless (and only to the extent that) the omission to notify materially prejudices the ability of the Significant Shareholders to contest the Tax Claim or otherwise materially increases the amount of any claim for indemnification against the Significant Shareholders, in which case the indemnification may be reduced to the extent that such delay materially prejudiced the contestation or materially increased the amount of liability.
(iii) In respect of a notification made pursuant to Section 6.06(c7.01(c)(i), Sellers may elect the Significant Shareholders shall be entitled to controlpay the Purchaser the amount claimed under an assessment or reassessment. The Significant Shareholders shall have the right, through their Representatives, and at their expense, upon giving notice to the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall Purchaser within thirty fifteen (3015) Business Days of delivery the receipt of any notice given pursuant to Section 7.01(c)(i), to challenge the Tax Claim Notice (or reasonably sooner, if the nature and assume control of the Indemnifiable negotiation, settlement and dispute of such Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceedingClaim. In that event, The Sellers shall thereafter keep the Purchaser reasonably and in good faith consult with Buyer informed with respect to each aspect the status of such Tax Claim.
(iv) If the Significant Shareholders opt to challenge the Tax Claim pursuant to Section 7.01(c)(iii), the Significant Shareholders shall diligently proceed with the negotiation, contestation or settlement of the defense againstTax Claim at their sole expense, or compromise or settlement ofincluding, any such Indemnifiable Tax Liability. Without limiting employment of counsel reasonably satisfactory to the generality Purchaser and, in connection therewith, the Purchaser shall cooperate fully, but at the expense of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and Significant Shareholders with respect to any reasonable out-of-pocket expenses incurred, to make available to the Significant Shareholders all pertinent information and witnesses under the Purchaser’s control, make such claim that could adversely affect an Acquired Companyassignments and take such other steps as in the opinion of counsel to the Significant Shareholders, Buyer or any of their respective affiliates with respect are reasonably necessary to any Post-Closing enable the Significant Shareholders to contest the Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax LiabilityClaim.
(cv) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer The Significant Shareholders shall not settle, compromise enter into any settlement or abandon discontinuance of proceedings or make any such final decision regarding appeal rights in respect of a Tax Proceeding Claim for which the Significant Shareholders have given a notice pursuant to Section 7.01(c)(iii) without obtaining the prior written consent of the SellersPurchaser, which consent shall not be unreasonably withheld.
(vi) The Purchaser shall not grant or agree to any waiver of any limitation period in respect of a Tax Claim referred to in Section 7.01(c)(i) unless the Sellers’ Representative has been given a notice by the Purchaser in accordance with Section 7.01(c)(i) and the Significant Shareholders have failed to give the notice contemplated by Section 7.01(c)(iii) to the Purchaser before the earlier of the date on which the deadline for providing the waiver expires (which date shall be specified in the notice given to the Sellers’ Representative in accordance with Section 7.01(c)(i)) and the fifteenth (15th) Business Day following receipt by the Sellers’ Representative of the notice contemplated by Section 7.01(c)(i).
(vii) The Purchaser will be entitled to participate in the contestation of such Tax Claim and to employ counsel of its choice for such purpose, conditioned provided that the fees and expenses of such separate counsel will be borne by the Purchaser (other than any fees and expenses of such separate counsel that are incurred prior to the date the Significant Shareholders effectively assume control of such contestation and that are reasonably necessary in order to protect its rights vis-à-vis the Governmental Authority responsible for such Tax Claim which, notwithstanding the foregoing, will be borne by the Significant Shareholders).
(viii) If the Significant Shareholders fail to give notice to the Purchaser that the Significant Shareholders wish to challenge a Tax Claim within fifteen (15) Business Days after the Sellers’ Representative has been notified of such Tax Claim pursuant to Section 7.01(c)(i), the Sellers shall be deemed to have accepted the validity of such Tax Claim.
(ix) In the case of a Tax Claim for which the Purchaser is required by applicable Law to make a payment to any Governmental Authority with respect to such Tax Claim before the completion of settlement negotiations or delayedrelated legal proceedings, the Significant Shareholders shall pay such Tax (or part thereof) to the Purchaser at the time such Tax is required by Law to be paid.
(x) The Purchaser shall reimburse to the Significant Shareholders the amount paid in respect of the Tax Claim by the Sellers to the Purchaser finally determined not to be due and in respect of which all appeal procedures have been exhausted or discontinued or settled.
(xi) Subject to Section 7.01(c)(ix), amounts payable by an Significant Shareholders in respect of a Tax Claim shall be paid within the time provided for by applicable Law or in accordance with the terms of any settlement with a Governmental Authority or assessment or reassessment issued pursuant to a final judgment.
Appears in 1 contract
Sources: Share Purchase Agreement (Double-Take Software, Inc.)
Contests. (a) Upon receipt After the Closing, the Purchaser shall promptly notify the Seller in writing of any demand or claim received by Buyer, the Purchaser or an Acquired Subsidiary from any Acquired Company Tax authority or other party with respect to Taxes for which the Seller is liable pursuant to Section 7.01. Such notice shall contain factual information (to the extent known) describing the asserted Tax liability in reasonable detail and shall include copies of any Affiliate thereof notice or other document received from any Tax authority in respect of a written any such asserted Tax liability. If the Purchaser fails to give the Seller prompt notice of an asserted Tax liability as required by this Section 7.03, then (i) if the Seller is precluded by the failure to give prompt notice from contesting the asserted tax liability in both the administrative and judicial forums, then the Purchaser shall have sole responsibility for such Tax liability or (ii) if the Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to the Seller, then any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise amount which the Seller is otherwise required to a claim for indemnity under pay the Purchaser pursuant to Section 6.03 (an “Indemnifiable Tax Liability”), Buyer 7.01 with respect to such liability shall promptly give written notice thereof to Parent (be reduced by the “Tax Claim Notice”)amount of such detriment.
(b) Subject to Section 6.06(c), Sellers The Seller may elect to controldirect, through their Representatives, counsel of its own choosing and at their its own expense, the compromise any audit, claim for refund and administrative or contestjudicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 7.01 (any such audit, either administratively claim for refund or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability is referred to herein as a "Contest"). If Sellers elect the Seller elects to so represent the interests of an Acquired Company or Buyerdirect a Contest, they it shall within thirty (30) Business Days calendar days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requires) liability notify Buyer the Purchaser of their its intent to do so, and Buyer the Purchaser shall cooperate and shall cause an Acquired Subsidiary or any of its successors to cooperate, at the sole expense of Sellersthe Seller, in each phase of such Contest. If the defense againstSeller elects not to direct the Contest, fails to notify the Purchaser of its election as herein provided or compromise contests its obligation to indemnify under Section 7.01, the Purchaser or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Subsidiary may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlcontest, at its own expense, any Tax proceeding for a Straddle Period with respect to such asserted liability. However, in such case, neither the Purchaser nor any Acquired CompanySubsidiary may settle or compromise any asserted liability over the objection of the Seller; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, consent to settlement or compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld. In any event, conditioned the Seller may participate, at its own expense, in the Contest. If the Seller chooses to direct the Contest, the Purchaser shall promptly empower and shall cause an Acquired Subsidiary or delayedany of its successors promptly to empower (by power of attorney and such other documentation as may be appropriate) such representatives of the Seller as it may designate to represent the Purchaser, an Acquired Subsidiary or any of their successors in the Contest insofar as the Contest involves an asserted Tax liability for which the Seller would be liable under Section 7.01(a).
Appears in 1 contract
Sources: Stock Purchase Agreement (Wherehouse Entertainment Inc /New/)
Contests. (a) Upon receipt After the Closing, Purchaser shall promptly notify 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 TEC, AenP, or Electroandes which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by Buyer, Seller under Section 9.11. Such notice shall contain factual information (to the extent known to Purchaser) describing the asserted Tax liability in reasonable detail and shall include copies of any Acquired Company notice or other document received from any Affiliate thereof taxing authority in respect of a written any such asserted Tax liability. If Purchaser fails to give Seller prompt notice of an asserted Tax liability as required by this Section 9.13, then Seller shall not have any pending or threatened obligation to indemnify for any loss arising out of such asserted Tax auditsliability, examinations, protest proceedings, assessments or claims but only to the extent that could failure to give rise such notice results in a detriment to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”)Seller.
(b) Subject In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to Section 6.06(c)Indemnified Taxes, Sellers Seller shall have the sole right, at its expense, to control the conduct of such Contest. Seller shall consult with Purchaser and shall keep Purchaser reasonably informed with respect to any such Contest.
(c) With respect to Straddle Periods, Seller may elect to direct and control, through their Representativescounsel of its own choosing, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Contest involving any asserted Tax Liabilityliability with respect to which indemnity may be sought from Seller pursuant to Section 9.11. If Sellers elect Seller elects to so represent the interests of an Acquired Company or Buyerdirect a Contest, they Seller shall within thirty (30) Business Days 90 days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requires) liability notify Buyer Purchaser of their its intent to do so, and Buyer Purchaser shall cooperatecooperate and shall cause AenP, at the sole expense of SellersTEC and Electroandes to cooperate fully, in such Contest. If Seller elects not to direct the defense againstContest, Purchaser may assume control of such Contest (at Purchaser’s expense). However, in such case, none of Purchaser, AenP, TEC or Electroandes may settle or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability asserted liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired CompanySeller; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, consent to settlement or compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld. In any event, conditioned Seller may participate in the Contest.
(d) Purchaser and Seller agree to cooperate, and Purchaser agrees to cause AenP, TEC and Electroandes to cooperate, in the defense against or delayedcompromise of any claim in any Contest.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pseg Energy Holdings LLC)
Contests. (a) Upon In the event any Governmental Authority determines that Transmission ProviderOwner’s receipt by Buyerof payments or property constitutes income that is subject to taxation, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax auditsTransmission ProviderOwner shall notify Interconnection CustomerDeveloper, examinationsin writing, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Calendar Days of delivery receiving notification of any Tax Claim Notice (or reasonably soonersuch determination by a Governmental Authority. Upon the timely written request by Interconnection CustomerDeveloper and at Interconnection CustomerDeveloper’s sole expense, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do soTransmission ProviderOwner shall appeal, and Buyer shall cooperateprotest, at the sole expense of Sellers, in the defense againstseek abatement of, or compromise or settlement of, any claim in any otherwise oppose such proceedingdetermination. In that event, Sellers shall reasonably Upon Interconnection CustomerDeveloper’s written request and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its sole expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and Transmission ProviderOwner shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any file a claim of matters related to Indemnifiable Tax Liability, and for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such claim that could adversely affect an Acquired Companya determination. Transmission ProviderOwner reserves the right to make all decisions with regard to the prosecution of such appeal, Buyer protest, abatement or any other contest, including the selection of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, counsel and compromise or abandon any matter related settlement of the claim, but Transmission ProviderOwner shall keep Interconnection CustomerDeveloper informed, shall consider in good faith suggestions from Interconnection CustomerDeveloper about the conduct of the contest, and shall reasonably permit Interconnection CustomerDeveloper or an Interconnection CustomerDeveloper representative to Indemnifiable Tax Liability without obtaining the prior written consent attend contest proceedings. Interconnection CustomerDeveloper shall pay to Transmission ProviderOwner on a periodic basis, as invoiced by Transmission ProviderOwner, Transmission ProviderOwner’s documented reasonable costs of Buyerprosecuting such appeal, which consent shall protest, abatement or other contest. Transmission ProviderOwner will not be unreasonably conditionedrequired to appeal or seek further review beyond one level of judicial review. At any time during the contest, withheld Transmission ProviderOwner may agree to a settlement either with Interconnection CustomerDeveloper’s consent or delayed. If Sellers elect not after obtaining written advice from nationally-recognized tax counsel, selected by Transmission ProviderOwner, but reasonably acceptable to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, howeverInterconnection CustomerDeveloper, that (i) Buyer the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection CustomerDeveloper’s obligation shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining be based on the prior written consent amount of the Sellerssettlement agreed to by Interconnection CustomerDeveloper, which or if a higher amount, so much of the settlement that is supported by the written advice from nationally- recognized tax counsel selected under the terms of the preceding sentence. Any settlement without Interconnection CustomerDeveloper’s consent shall not be unreasonably withheld, conditioned or delayedsuch written advice will relieve Interconnection CustomerDeveloper from any obligation to indemnify Transmission ProviderOwner for the tax at issue in the contest.
Appears in 1 contract
Contests. (a) Upon receipt by Buyer, If any Acquired Governmental Authority issues to the Company or any Affiliate thereof of a written notice of its intent to audit, examine or conduct a proceeding, a written notice of its 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 pending Taxes or threatened the filing of a Tax audits, examinations, protest proceedings, assessments Return for a Pre-Closing Tax Period or claims that could give rise to a claim for indemnity under Section 6.03 Straddle Period (an a “Indemnifiable Tax LiabilityClaim”), Buyer shall promptly give written notice thereof to Parent (the “notify Seller of its receipt of such Tax Claim Notice”).
within ten (b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (3010) Business Days following receipt, provided however, that the failure of delivery the Buyer to notify Seller of its receipt of a Tax Claim within ten (10) Business Days shall not relieve the Seller from liability pursuant to Section 6.03(a) except to the extent the Seller is materially prejudiced as a consequence of such failure. Seller shall control any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer other matter with respect to each aspect a Pre-Closing Tax Period of the defense againstCompany (a “Seller’s Tax Contest”), or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permittedprovided that Buyer, at its sole cost and expense, shall have the right to be represented at each conference, hearing or meeting participate in any Seller’s Tax Contest that does not involve income Taxes and provided further that the Seller shall provide the Buyer with representatives a copy of the pertinent taxing authority 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 (a “Buyer’s Tax Contest”), provided that Seller, at its sole cost and expense, shall be notified reasonably have the right to participate in advance thereof)any Buyer’s Tax Contest that relates to a Straddle Period Return. Sellers shall promptly notify Buyer The party controlling a Tax Claim described in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers the preceding sentence shall not settle, compromise or abandon any matter related agree to Indemnifiable settle such Tax Liability Claim if such settlement could affect the Tax liability of the other party without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellersother party, which consent shall not be unreasonably withheld, conditioned or delayed, provided that if any party (the “First Party”) shall reasonably withhold consent for a settlement, the other party (the “Second Party”) shall be entitled to enter into such settlement 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. (aIn the event any Governmental Authority determines that any Participant’s receipt of payments or property constitutes income that is subject to taxation, Operating Agent upon notification from such Participant(s) Upon receipt by Buyershall notify Interconnection Customer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax auditsin writing, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Calendar Days of delivery receiving notification of any Tax Claim Notice (such determination by a Governmental Authority. Upon the timely written request by Interconnection Customer and at Interconnection Customer's sole expense, Operating Agent or reasonably sooneraffected Participant(s), if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do soas permissible, and Buyer shall cooperatemay appeal, at the sole expense of Sellersprotest, in the defense againstseek abatement of, or compromise or settlement of, any claim in any otherwise oppose such proceedingdetermination. In that event, Sellers shall reasonably Upon Interconnection Customer's written request and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its sole expense, to be represented at each conferenceOperating Agent or applicable Participants, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settlesas permissible, compromises or abandons any may file a claim of matters related to Indemnifiable Tax Liability, and for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such claim that could adversely affect an Acquired Companya determination. The affected Participant(s) reserve the right to make all decisions with regard to the prosecution of such appeal, Buyer protest, abatement or any other contest, including the selection of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, counsel and compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining settlement of the prior written consent claim, but such Participant(s) through Operating Agent shall keep Interconnection Customer informed, shall consider in good faith suggestions from Interconnection Customer about the conduct of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion)contest, and Sellers shall remain fully liable for reasonably permit Interconnection Customer or Interconnection Customer’s representative to attend contest proceedings. Interconnection Customer shall pay to Operating Agent on a periodic basis, as invoiced by Operating Agent, the affected Participant’s documented reasonable costs of prosecuting such Indemnifiable Tax Liability.
(cappeal, protest, abatement or other contest. Any such payments received by Operating Agent shall be distributed to the affected Participants based on such Participant’s documented reasonable costs. At any time during the contest, the affected Participant(s) Buyer shall controlmay agree to a settlement either with Interconnection Customer's consent or after obtaining written advice from nationally-recognized tax counsel, at its own expenseselected, any Tax proceeding for a Straddle Period with respect by the affected Participant(s) but reasonably acceptable to any Acquired Company; provided, howeverInterconnection Customer, that (i) Buyer the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection Customer's obligation shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining be based on the prior written consent amount of the Sellerssettlement agreed to by Interconnection Customer, which or if a higher amount, so much of the settlement that is supported by the written advice from nationally-recognized tax counsel selected under the terms of the preceding sentence. The settlement amount shall be calculated on a fully grossed-up basis to cover any related cost consequences of the current tax liability. Any settlement without Interconnection Customer's consent shall not be unreasonably withheld, conditioned or delayedsuch written advice will relieve Interconnection Customer from any obligation to indemnify the Participant(s) for the tax at issue in the contest.
Appears in 1 contract
Contests. (a) Upon Each of Purchaser, the Company and 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 Buyer, any Acquired Company or any Affiliate thereof the Recipient of a 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 audits, examinations, protest proceedings, assessments or claims 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 give rise such prompt notice to a claim the other party, the Recipient shall not be entitled to indemnification for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “any Taxes arising in connection with such Tax Claim Notice”)if and to the extent that such failure to give notice materially and adversely affects the other party.
(b) Subject Seller shall have the sole right to Section 6.06(c), Sellers may elect to control, through their Representatives, represent and at their expense, control the compromise or contest, either administratively or Acquired Companies' interests in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (relating to taxable periods ending on or reasonably soonerbefore the Closing Date and to employ counsel of its choice at its expense; PROVIDED, if HOWEVER, that Seller shall have no right to represent the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim Acquired Companies' interest in any such proceedingTax 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 Tax Claim by Purchaser. Purchaser may participate in such Tax Claim at its own expense. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect the case of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing a Split Tax Period, Sellers Seller shall not settlebe entitled to participate at its expense in any Tax Claim relating in any part to Taxes attributable to the Pre-Closing Period and, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining with the prior written consent of BuyerPurchaser, 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 Claim for which Seller may have a liability under this Agreement, or which may result in an increase in Seller's liability under this Agreement, without the prior written consent of Seller, which consent shall may not be unreasonably conditionedwithheld, withheld unless Purchaser and the Acquired Companies fully indemnify Seller in writing with respect to such liability in a manner satisfactory to Seller. Neither Seller nor any of its affiliates may settle or delayed. If Sellers elect 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 unreasonably withheld, unless Seller fully indemnifies Purchaser and the Acquired Companies in writing with respect to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability liability in any reasonable a manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liabilitysatisfactory to Purchaser.
(c) Buyer Seller shall controluse its reasonable best efforts to minimize any interest, at its own expensepenalties, any Tax proceeding for a Straddle Period and other additions to Taxes that may be payable with respect to any Tax Claim for which the Seller has the right to represent and control the Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayedCompanies' interests.
Appears in 1 contract
Contests. (a) Upon receipt by Buyer, Whenever any Acquired Company or any Affiliate thereof of Taxing Authority sends a written notice of any pending audit, initiates an examination of the Company, or threatened otherwise asserts a claim, makes an assessment, or disputes the amount of Taxes (each, a “Tax audits, examinations, protest proceedings, assessments or claims that could give rise Contest”) with respect to any:
(i) Pre-Closing Tax Period (excluding a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”Straddle Period), Buyer shall promptly give written notice thereof inform Interest Sellers and Interest Sellers shall have the right to Parent control any resulting Proceedings (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their own expense) and, subject to the compromise or contestimmediately following sentence, either administratively or in to determine whether and when to settle any such Tax Contest; provided however, that (A) Interest Sellers shall keep Buyer apprised of all developments relating to any such Tax Contest and shall conduct the courts, defense of any Indemnifiable such Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably Contest diligently and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, and (B) Buyer shall be permitted, have the right to participate in such Tax Contest at its own expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Interest Sellers shall promptly notify Buyer in writing after it settlesnot settle, compromises or abandons compromise and/or concede any claim portion of matters related to Indemnifiable a Tax LiabilityContest if such settlement, and with respect to any such claim that could adversely affect compromise and/or concession would have an Acquired Company, adverse impact on Buyer or any of their respective affiliates with respect to the Company for any Post-Closing Tax Period, Sellers shall not settleincluding a post-Closing Straddle Period, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably withheld, delayed or conditioned. If, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired CompanyTax Contest, Interest Sellers fail diligently to defend or prosecute such Tax Contest to a final determination, then Buyer shall at any time thereafter have the right (but not the obligation) to defend or prosecute, at the sole cost, expense and risk of Interest Sellers, such Tax Contest. Buyer shall have full control of such defense or prosecution and such Proceedings, including any settlement or compromise thereof; or
(ii) Post-Closing Tax Period (including a Straddle Period), Buyer shall have the right to control any resulting Proceedings and, subject to the immediately following sentence, to determine whether and when to settle any such Tax Contest; provided, however, in the case of a Tax Contest that (i) Buyer relates to a Straddle Period, Interest Sellers shall consult with Sellers before taking any significant action have the right to participate in connection with such Tax proceeding, and (ii) Contest at their own expense. Buyer shall not settle, compromise or abandon and/or concede any portion of a Tax Contest if such settlement, compromise and/or concession would have an adverse impact on Interest Sellers for any Pre-Closing Tax Proceeding Period, including a pre-Closing Straddle Period, without obtaining the prior written consent of the Interest Sellers, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (Montauk Renewables, Inc.)
Contests. (a) Upon Each Party will promptly notify the other Party in writing upon receipt by Buyer, any Acquired Company such Party (or any Affiliate thereof of a written its Affiliates) of notice of any pending or threatened audit, examination or proceeding by a Governmental Authority in respect of which an indemnity may be sought pursuant to this Article VI (a “Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax LiabilityClaim”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with the failure of such Tax proceeding, and (ii) Buyer party to give prompt notice shall not settlerelieve the other party of any of its obligations under this Article VI except to the extent the other party can demonstrate actual prejudice as a result of such failure.
(b) Seller (or Affiliate thereof) shall control any Tax Claim related to Consolidated Returns and Taxes of the Company Group to be reported on or related to a Consolidated Return. Seller shall keep Buyer fully and timely informed with respect to the commencement, compromise or abandon status and nature of any such Tax Proceeding without obtaining the prior written consent Claim related to Taxes of the SellersCompany Group. Seller shall, which in good faith, allow Buyer to make comments to Seller regarding the conduct of or positions taken in any such proceeding. Buyer shall have the right to consent shall prior to any settlement with respect to (or abandonment of) any such Tax Claim related to Taxes of the Company Group (provided such consent cannot be unreasonably withheld, conditioned or delayed).
(c) Buyer (or Affiliate thereof) shall control any Tax Claim related to Taxes of the Company Group with respect to a Pre-Closing Tax Period and Straddle Period other than Tax Claims subject to Section 6.07(b). Buyer shall keep Seller fully and timely informed with respect to the commencement, status and nature of any such Tax Claim. Buyer shall, in good faith, allow Seller to make comments to Buyer regarding the conduct of or positions taken in any such proceeding. Seller shall have the right to consent prior to any settlement with respect to (or abandonment of) any such Tax Claim (provided such consent cannot be unreasonably withheld, conditioned, or delayed).
Appears in 1 contract
Contests. (a) Upon receipt After the Closing, each party to this Agreement (whether Buyer or the Shareholder Representatives, as the case may be) shall promptly notify the other party in writing of any demand, claim or notice of the commencement of an audit received by Buyer, such party from any Acquired Company Governmental Authority or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer other Person with respect to each aspect Taxes for which such other party is liable pursuant to Section 8.02 or Section 8.03 of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Companythis Agreement; provided, however, that a failure to give such notice will not affect such other party’s rights to indemnification under Article VIII, except to the extent that such party is actually prejudiced thereby. Such notice shall contain factual information (ito the extent known) describing the asserted Tax liability and shall include copies of the relevant portion of any notice or other document received from any Governmental Authority or any other Person in respect of any such asserted Tax liability.
(b) The Shareholder Representatives shall control the conduct, through counsel of its own choosing at its own expense, of any Action, audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the Company or any of the Subsidiaries (any such Action, audit, claim for refund, or proceeding relating to an asserted Tax liability in respect of which an indemnity may be sought by Buyer pursuant to Section 8.02(a)(iii) referred to herein as a “Tax Claim”) relating to Pre-Closing Tax Periods.
(c) In the case of a Contest that relates to Straddle Periods (as defined in Section 6.03 above), Buyer shall consult with Sellers before taking any significant action in connection with control the conduct of such Tax proceedingClaim, but the Shareholder Representatives shall have the right to participate in such Tax Claim at their own expense (payable from the Shareholder Representatives’ Holdback or pursuant to the Contribution Agreement, as applicable) and, with the written consent of Buyer, in Buyer’s sole discretion, and at their expense (ii) Buyer payable from the Shareholder Representatives’ Holdback or pursuant to the Contribution Agreement, as applicable), may assume control of the conduct of such Tax Claim. Neither Buyer, the Company nor any of the Subsidiaries shall not settle, compromise or abandon any and/or concede such Tax Proceeding Claim without obtaining the prior written consent of the SellersShareholder Representatives, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned. If Buyer fails to assume control of the conduct of any such Tax Claim within a reasonable period following the receipt by Buyer of notice of such Tax Claim, the Shareholder Representatives shall have the right to assume control of such Tax Claim and shall be able to settle, compromise and/or concede such Tax Claim in their sole discretion.
Appears in 1 contract
Sources: Merger Agreement (Nn Inc)
Contests. (a) Upon receipt by BuyerAfter the Closing, any Acquired the Purchaser shall reasonably promptly after becoming aware notify the Company or any Affiliate thereof in writing of a written notice the commencement of any pending Tax audit or threatened administrative or judicial proceeding and shall also separately notify the Company in writing of any demand or claim on the Purchaser which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification by the Company under this Article VII. Such notice shall contain factual information (to the extent known to the Purchaser) describing the asserted Tax audits, examinations, protest proceedings, assessments liability in reasonable detail and shall include copies of any notice or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable other document received from any taxing authority in respect of any such asserted Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”)liability.
(b) Subject to Section 6.06(c)The Company, Sellers promptly after receiving notice, may elect to controldirect, through their Representatives, counsel of 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 against the compromise Company under this Article VII (any such audit, claim for refund or contest, either administratively or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability are referred to herein collectively as a "CONTEST"). If Sellers elect the Company elects to so represent direct the interests Contest of an Acquired Company or Buyerasserted Tax liability, they the Purchaser shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperatecooperate in all reasonable respects, at the sole expense of SellersCompany's expense, in each phase of such Contest. If the defense against, Company does not either reasonably promptly give notice to direct the Contest or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect commence the direction of the defense againstContest or if it contests its obligation to indemnify under Section 7.02, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Purchaser may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlcontest, at its own expense, such asserted liability without waiving any Tax proceeding for a Straddle Period with respect of its rights to indemnification hereunder. However, in such case, the Purchaser may not settle or compromise any Acquired asserted liability over the objection of the Company; provided, however, that the Company's consent to settlement or compromise shall not be unreasonably withheld or delayed. In any event, each of the Purchaser and the Company may participate, at their own expense, in the Contest. If the Company chooses to direct the Contest, the Purchaser shall promptly empower (iby power of attorney and such other documentation as may be appropriate) Buyer such representatives of the Company as the Company may designate to represent the Purchaser or its successor in the Contest insofar as the Contest involves an asserted Tax liability for which the Company would be liable under this Article VII, PROVIDED that the Company shall not, without the Purchaser's consent, which shall not be unreasonably withheld or delayed, (x) agree to any settlement with respect to any Tax if such settlement would likely materially adversely affect the future Tax liability of the Purchaser for any periods ending after the Closing Date other than through the use of losses or credits arising in periods or portions thereof ending on or prior to the Closing Date or (y) agree to any settlement of such claim or cease to defend against such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief would be imposed against the Purchaser. If, with respect to any proposed settlement referred to in clause (x) of the previous sentence, the Company proposes in good faith to settle a claim, suit, action or proceeding with respect to any Tax, which settlement offer is accepted by the relevant taxing authority, the Purchaser may elect to continue to contest such claim, suit, action or proceeding; provided that notwithstanding how such matter is ultimately settled or decided, the liability of the Company with respect to such claim, suit, action or proceeding shall be no greater than the amount which would have been payable if the Purchaser had consented to the settlement proposed by the Company.
(c) The Purchaser shall have the sole obligation and right to direct, at its own expense, a Contest regarding any Tax Return for any taxable period commencing after the Closing Date in the case of a Tax Return which is filed on a combined, consolidated, unitary or similar basis with the Purchaser; PROVIDED, HOWEVER, that the Purchaser shall advise and consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon the Company regarding the status of any such Contest that involves an asserted Tax Proceeding liability for which the Company would be liable under this Article VII and provided, further, that, Purchaser shall not, without obtaining the prior written consent of the Sellers, Company (which consent shall not be unreasonably withheld, conditioned withheld or delayed) settle any such contest.
Appears in 1 contract
Sources: Asset Purchase Agreement (White Mountains Insurance Group LTD)
Contests. (a) Upon 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 BuyerPurchaser or the Company of notice thereof, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (inform the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their RepresentativesStockholders, and the Stockholders shall have the right, at their expense, the compromise or contest, either administratively or in the courts, of to control any Indemnifiable Tax Liability. If Sellers elect resulting proceedings and to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent determine whether and when to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in settle any such proceeding. In that eventclaim, Sellers shall reasonably and in good faith consult with Buyer assessment or dispute, to the extent such proceedings affect the amount of Taxes with respect to each aspect which the Company and Purchaser are entitled to indemnification pursuant to Section 9.1, provided that the Stockholders shall not be entitled to settle any claim for Taxes that would have the consequence of adversely affecting the liability for Taxes of the defense against, Company or compromise or settlement of, its Subsidiaries for any such Indemnifiable Tax Liability. Without limiting period after the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect Closing Date to any such claim that could adversely affect an Acquired Companyextent (including, Buyer 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 their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise amortization or abandon any matter related to Indemnifiable Tax Liability depreciation deductions) without obtaining the prior written consent of Buyer, which Purchaser. Such consent shall not be unreasonably conditionedwithheld and shall not be necessary to the extent the Stockholders have indemnified Purchaser and the Company against the effects of any such settlement. Purchaser, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Company and their representatives may pay, compromise or contest such Indemnifiable Tax Liability also participate in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, proceedings at its their own expense. Whenever any taxing authority asserts a claim, any Tax proceeding for a Straddle Period 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 Acquired Company; providedresulting proceedings and to determine whether and when to settle any such claim, howeverassessment or dispute, that 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 (iand shall cause the Company not to) Buyer shall consult file or amend any Tax Return with Sellers before taking any significant action in connection 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 Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent extension shall not be unreasonably withheld, conditioned or delayedgranted if the statute of limitations would be extended to a date after five years following the Closing Date.
Appears in 1 contract
Sources: Recapitalization and Stock Purchase Agreement (American Axle & Manufacturing Holdings Inc)
Contests. (a) Upon In the event any Governmental Authority determines that Transmission Provider’s receipt by Buyerof payments or property constitutes income that is subject to taxation, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax auditsTransmission Provider shall notify Interconnection Customer, examinationsin writing, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Calendar Days of delivery receiving notification of any Tax Claim Notice (or reasonably soonersuch determination by a Governmental Authority. Upon the timely written request by Interconnection Customer and at Interconnection Customer’s sole expense, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do soTransmission Provider may appeal, and Buyer shall cooperateprotest, at the sole expense of Sellers, in the defense againstseek abatement of, or compromise or settlement of, any claim in any otherwise oppose such proceedingdetermination. In that event, Sellers shall reasonably Upon Interconnection Customer’s written request and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its sole expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any Transmission Provider may file a claim of matters related to Indemnifiable Tax Liability, and for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such claim that could adversely affect an Acquired Companya determination. Transmission Provider reserves the right to make all decisions with regard to the prosecution of such appeal, Buyer protest, abatement or any other contest, including the selection of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, counsel and compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining settlement of the prior written consent claim, but Transmission Provider shall keep Interconnection Customer informed, shall consider in good faith suggestions from Interconnection Customer about the conduct of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion)contest, and Sellers shall remain fully liable for reasonably permit Interconnection Customer or an Interconnection Customer representative to attend contest proceedings. Interconnection Customer shall pay to Transmission Provider on a periodic basis, as invoiced by Transmission Provider, Transmission Provider’s documented reasonable costs of prosecuting such Indemnifiable Tax Liability.
(c) Buyer shall controlappeal, at its own expenseprotest, abatement or other contest. At any Tax proceeding for time during the contest, Transmission Provider may agree to a Straddle Period settlement either with respect Interconnection Customer’s consent or after obtaining written advice from nationally-recognized tax counsel, selected by Transmission Provider, but reasonably acceptable to any Acquired Company; provided, howeverInterconnection Customer, that (i) Buyer the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection Customer’s obligation shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining be based on the prior written consent amount of the Sellerssettlement agreed to by Interconnection Customer, which or if a higher amount, so much of the settlement that is supported by the written advice from nationally-recognized tax counsel selected under the terms of the preceding sentence. The settlement amount shall be calculated on a fully grossed-up basis to cover any related cost consequences of the current tax liability. Any settlement without Interconnection Customer’s consent shall not be unreasonably withheld, conditioned or delayed.such written advice will relieve Interconnection Customer from any obligation to indemnify Transmission Provider for the tax at issue in the contest. Arizona Public Service Company APS Contract No. 52023 LGIA (Large Generator Interconnection Agreement)
Appears in 1 contract
Contests. (a) Upon receipt by BuyerAfter the Closing, any Acquired Company or any Affiliate thereof of a written notice Acquirer and the Shareholders shall promptly notify each other in writing of any pending demand or threatened claim received by the Shareholders, Acquirer or Target from any Tax audits, examinations, protest proceedings, assessments authority or claims that could give rise other party with respect to a claim Taxes for indemnity under which the Shareholders are liable pursuant to Section 6.03 12.01(a). Such notice shall contain factual information (an “Indemnifiable to the extent known) describing the asserted Tax Liability”), Buyer liability in reasonable detail and shall promptly give written include copies of any notice thereof to Parent (the “or other document received from any Tax Claim Notice”)authority in respect of any such asserted Tax liability.
(b) Subject to Section 6.06(c), Sellers The Shareholders (or their designee) may elect to controlcontrol the conduct, through their Representatives, counsel of its own choosing and at their its own expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 12.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax Liabilityliability is referred to herein as a "Contest "). If Sellers the Shareholders (or their designee) elect to so represent the interests of an Acquired Company or Buyercontrol a Contest, they it shall within thirty (30) Business Days 20 calendar days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requires) liability notify Buyer Acquirer of their its intent to do so, and Buyer the Shareholders (or their designee) shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect have all rights to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest and/or concede such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Companyasserted liability; provided, however, that (i) Buyer Acquirer shall have the right to consult with Sellers before taking the Shareholders regarding any significant action in connection with such Tax proceeding, Contest that may affect the Acquirer or Target for any Post-Closing Period and (ii) Buyer provided further that the Shareholders shall not have the right to settle, compromise and/or concede any Contest that may affect the Acquirer or abandon Target for any such Tax Proceeding period after the Closing Date without obtaining the Acquirer's prior written consent of the Sellersconsent, which consent shall not be unreasonably withheld. If the Shareholders elect not to control the Contest or fails to notify Acquirer of its election as herein provided, conditioned Acquirer may pay, compromise or delayedcontest, 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 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 connection with or otherwise with respect to such position.
Appears in 1 contract
Sources: Merger Agreement (National Medical Health Card Systems Inc)
Contests. (ai) Upon receipt After the Closing, Purchaser shall promptly notify the Seller Representative in writing of any demand, claim or notice received by Buyer, any Acquired Company Purchaser or any Affiliate thereof of a written notice (including the Company) from any Governmental Body or any other Person relating to the commencement of any pending or threatened Tax auditsTax-related action, examinationsaudit, protest proceedings, assessments or claims that could give rise to a claim for indemnity under refund, or administrative or judicial proceeding (each, a “Tax Action”) to the extent such Tax Action relates to (each, a “Seller Tax Action”) (x) a Pass-Through Income Tax Return for any period (or portion thereof) during which any Seller held an interest in the Company or (y) any Tax Action the resolution or outcome of which could result in any Tax or related Liability, damage or loss due or payable by any Seller to any Governmental Body or Purchaser (or any of its Affiliates) pursuant to this Agreement (Section 6.03 7.4(h)) (each, an “Indemnifiable Other Tax LiabilityAction”), Buyer . Such notice shall promptly give written contain factual information (to the extent known) describing the asserted Tax liability and shall include copies of any notice thereof to Parent (the “or other document received from any Governmental Body or any other Person in respect of any such asserted Tax Claim Notice”)liability.
(bii) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, The Seller Representative shall have the right (at its election and at their expense, its own expense and by the compromise or contest, either administratively or in the courts, counsel and representatives of any Indemnifiable Tax Liability. If Sellers elect its own choosing) to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in control the defense against, or compromise or settlement of, any claim in any such proceedingand resolution all Seller Tax Actions by providing written notice to the Purchaser. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with With respect to any such claim that could adversely affect an Acquired CompanySeller Tax Action controlled by the Seller Representative, Buyer or (i) the Seller Representative may not settle any of their respective affiliates with respect to any Post-Closing Seller Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability Action without obtaining the prior written consent of Buyer, Purchaser (which consent shall Purchaser will not be unreasonably conditionedwithhold, withheld conditioned or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), (ii) the Seller Representative will keep Purchaser reasonably informed of all material communications with any Governmental Body, and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(ciii) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Seller Tax Action that is an Other Tax Action or which is reasonably likely to result in any Tax imposed directly on the Company; provided, howeverPurchaser (at its sole expense) may passively participate in (but not control or otherwise settle or resolve) such Seller Tax Action. The Seller Representative will have the right to participate (at its sole expense) in any proceeding with respect to Tax Action that Seller Representative does not elect to control pursuant to this Section 7.4(d) or that Seller ceases to control (each, that (i) Buyer a “Purchaser Controlled Action”). Purchaser shall consult control the conduct of such Purchaser Controlled Action, but Seller shall have the right to participate in such Purchaser Controlled Action at its own expense and, with Sellers before taking any significant action the written consent of Purchaser, in connection with Purchaser’s sole discretion, and at its expense, Seller may assume control of the conduct of such Tax proceeding, and (ii) Buyer Action. Purchaser shall not settle, compromise (and shall not cause or abandon permit) the resolution or settlement of any such Tax Proceeding Purchaser Controlled Action without obtaining the prior written consent of the Sellers, which Seller Representative (such consent shall not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary in the foregoing provisions, if Purchaser fails to assume control of the conduct of any such Purchaser Controlled Action within a reasonable period following the receipt by Purchaser of notice of such Tax Action or fails to defend or contest any such Tax Action in good faith or by appropriate proceeds, the Seller Representative shall have the right (but not the obligation) to assume control of such Tax Action and shall be able to settle, compromise and/or concede such Tax Action in its sole discretion.
Appears in 1 contract
Contests. (a) Upon In the event any Governmental Authority determines that Distribution Provider’s receipt by Buyerof payments or property constitutes income that is subject to taxation, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax auditsDistribution Provider shall notify Interconnection Customer, examinationsin writing, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Calendar Days of delivery receiving notification of any Tax Claim Notice (or reasonably soonersuch determination by a Governmental Authority. Upon the timely written request by Interconnection Customer and at Interconnection Customer's sole expense, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do soDistribution Provider may appeal, and Buyer shall cooperateprotest, at the sole expense of Sellers, in the defense againstseek abatement of, or compromise or settlement of, any claim in any otherwise oppose such proceedingdetermination. In that event, Sellers shall reasonably Upon Interconnection Customer's written request and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its sole expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any Distribution Provider may file a claim of matters related to Indemnifiable Tax Liability, and for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such claim that could adversely affect an Acquired Companya determination. Distribution Provider reserves the right to make all decisions with regard to the prosecution of such appeal, Buyer protest, abatement or any other contest, including the selection of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, counsel and compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining settlement of the prior written consent claim, but Distribution Provider shall keep Interconnection Customer informed, shall consider in good faith suggestions from Interconnection Customer about the conduct of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion)contest, and Sellers shall remain fully liable for reasonably permit Interconnection Customer or an Interconnection Customer representative to attend contest proceedings. Interconnection Customer shall pay to Distribution Provider on a periodic basis, as invoiced by Distribution Provider, Distribution Provider’s documented reasonable costs of prosecuting such Indemnifiable Tax Liability.
(c) Buyer shall controlappeal, at its own expenseprotest, abatement or other contest. At any Tax proceeding for time during the contest, Distribution Provider may agree to a Straddle Period settlement either with respect Interconnection Customer's consent or after obtaining written advice from nationally-recognized tax counsel, selected by Distribution Provider, but reasonably acceptable to any Acquired Company; provided, howeverInterconnection Customer, that (i) Buyer the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection Customer's obligation shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining be based on the prior written consent amount of the Sellerssettlement agreed to by Interconnection Customer, which or if a higher amount, so much of the settlement that is supported by the written advice from nationally-recognized tax counsel selected under the terms of the preceding sentence. The settlement amount shall be calculated on a fully-grossed-up basis to cover any related cost consequences of the current tax liability. Any settlement without Interconnection Customer's consent shall not be unreasonably withheld, conditioned or delayedsuch written advice will relieve Interconnection Customer from any obligation to indemnify Distribution Provider for the tax at issue in the contest.
Appears in 1 contract
Sources: Clustering Large Generator Interconnection Agreement and Distribution Service Agreement
Contests. (a) Upon receipt by BuyerAfter the Closing, Purchaser shall promptly notify the Representative in writing of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding (a “Contest”) or of any demand or claim on Purchaser, its Affiliates, or any Acquired Company which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification against the Stockholders under Article 8. Such notice shall contain factual information (to the extent known to Purchaser, its Affiliates, or any Affiliate thereof Acquired Company) describing the asserted Tax liability in reasonable detail and shall include copies of a written any notice or other document received from any Tax authority in respect of any such asserted Tax liability. The failure of Purchaser to give the Representative prompt notice of an asserted Tax liability as required by this Section 7.2 shall not relieve the Stockholders of any pending or threatened obligation to indemnify for any loss arising out of such asserted Tax auditsliability, examinations, protest proceedings, assessments or claims that could give rise to except if the Stockholders shall have been actually and materially prejudiced as a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”)result of such failure.
(b) Subject With respect to Section 6.06(c)taxable periods that include but do not end on the date of the Closing, Sellers Purchaser may elect to direct and control, through their Representativescounsel of its own choosing, and at their expense, any Contest involving any asserted Tax liability with respect to which indemnity may be sought from the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax LiabilityStockholders pursuant to Article 8. If Sellers elect Purchaser elects to so represent the interests of an Acquired Company or Buyerdirect a Contest, they Purchaser shall within thirty ninety (3090) Business Days calendar days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requires) liability notify Buyer the Representative of their its intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that eventsuch case, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Representative may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, participate at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action expense in connection with such Tax proceeding, the Contest and (ii) Buyer Purchaser shall not settle, settle or compromise or abandon any such Tax Proceeding asserted liability without obtaining the prior written consent of the SellersRepresentative, which consent shall not be unreasonably withheld. If Purchaser elects not to direct the Contest, conditioned the Representative may assume control of such Contest (at the Representative’s own expense) as it relates to Pre-Closing Taxes and Purchaser and the applicable Acquired Companies shall cooperate, at the Representative’s expense, in each phase of such Contest. However, in such case, the Representative may not settle or delayedcompromise any asserted liability without prior written consent of Purchaser; provided, however, that consent to settlement or compromise shall not be unreasonably withheld.
(c) Purchaser and the Representative agree to cooperate, and Purchaser agrees to cause the Acquired Companies to cooperate, in the defense against or compromise of any claim in any Contest.
Appears in 1 contract
Sources: Merger Agreement (Davita Inc)
Contests. (a) Upon receipt by BuyerIn the case of 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, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax auditsthe Sellers shall have the right, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, to participate in and control the compromise conduct of such audit or contestproceeding but only to the extent that such audit or proceeding relates to a potential adjustment for which the Sellers have acknowledged the Sellers' liability and the issue underlying the potential adjustment does not recur for any period ending subsequent to the Closing Date. The Sellers shall keep the Purchaser fully informed of the progress of any such audit or proceeding and, either administratively or if it appears in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature sole discretion of the Indemnifiable Tax Liability so requires) notify Buyer of their intent Purchaser, that such audit or proceeding may reasonably be expected to do soadversely affect the Purchaser or the Company, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim Purchaser also may participate in any such audit or proceeding. In that event, If the Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of do not assume the defense against, or compromise or settlement of, of any such Indemnifiable Tax Liabilityaudit 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. Without limiting In the generality of event that a potential adjustment as to which the foregoingSellers would be liable is present in the same proceeding as a potential adjustment for which the Purchaser would be liable, Buyer the Purchaser shall be permittedhave the right, at its expense, to be represented at each conference, hearing control the audit or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and proceeding with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with 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 Post-period ending after the Closing Date (whether or not the subject of audit at such time), (i) both the Purchaser and the Sellers may participate in the audit or proceeding, each at its own expense, and (ii) 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 Period, Sellers periods. The principle set forth in the preceding sentence shall not settle, compromise or abandon govern also for purposes of deciding any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not issue that must be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate decided jointly (in its sole discretion)particular, choice of judicial forum) in circumstances in which separate issues are otherwise controlled hereunder by the Purchaser and Sellers shall remain fully liable for such Indemnifiable Tax Liabilitythe Sellers.
(c) Buyer Except as provided in Section 8.4(a) above, neither the Purchaser nor the Sellers shall control, at its own expense, enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party, or result in a material benefit to that party, for such year or a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding subsequent year without obtaining the prior written consent of the Sellersother party, which consent shall may not be unreasonably withheld, conditioned withheld or delayed.
Appears in 1 contract
Contests. (a) Upon receipt by BuyerSellers will allow the Company and its counsel to participate at its own expense in any audits of a consolidated, any Acquired combined or unitary Tax Return of an Affiliated Group of which the Company or any Affiliate thereof of its Subsidiaries was a member to the extent that such Returns relate to the Company and its Subsidiaries. Sellers will not settle any such audit in a manner which would adversely affect the Company and its Subsidiaries after the Closing Date unless such settlement would be reasonable in the case of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims Person that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (owned the “Tax Claim Notice”)Company and its Subsidiaries both before and after the Closing Date.
(b) Subject After the Closing, Purchasers shall promptly notify Sellers in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Purchasers, the Company or any of its Subsidiaries 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 Purchasers, the Company or its Subsidiaries) 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 Purchasers fail to give Sellers prompt notice of an asserted Tax liability as required by this Section 8.05(b), then (i) if Sellers are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Sellers shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Sellers are not so precluded from contesting but such failure to give prompt notice results in a detriment to Sellers, then any amount which Sellers are otherwise required to pay Purchasers pursuant to Section 6.06(c), 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Sellers may elect to controldirect, through counsel of their Representatives, own choosing and at their own expense, the compromise any audit, claim for refund and administrative or contestjudicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, either administratively claim for refund or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability are referred to herein collectively as a "Contest"). If Sellers elect to so represent direct the interests Contest of an Acquired Company or Buyerasserted Tax liability, they shall shall, within thirty (30) Business Days calendar days of delivery receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any Tax Claim Notice (protest or reasonably soonerother claim in respect thereof), if the nature of the Indemnifiable Tax Liability so requires) notify Buyer Purchasers of their intent to do so, so and Buyer shall cooperate, at the sole expense of Sellersacknowledge in writing, in form and substance satisfactory to Purchasers, their obligation to indemnify Purchasers in full therefor. Purchasers shall cooperate and shall cause the defense againstCompany, its Subsidiaries or compromise or settlement their successors to cooperate in each phase of such Contest. If Sellers choose to direct the Contest, Purchasers shall promptly empower and shall cause the Company, its Subsidiaries and their successors promptly to empower (by power-of, any claim in any -attorney and such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any other documentation as may be appropriate) such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of Sellers as they may designate to represent Purchasers, the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer its Subsidiaries or any of their respective affiliates with respect to any Post-Closing successors in the Contest insofar as the Contest involves an asserted Tax Period, liability for which Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not would be unreasonably conditioned, withheld or delayedliable under Section 8.01(a). If Sellers elect not to represent direct the interests Contest and acknowledge in writing, in form and substance satisfactory to Purchasers, their obligation to indemnify Purchasers in full therefor, then (i) Sellers may participate, at their own expense, in the Contest and (ii) neither Purchasers, the Company nor any Subsidiary shall settle or compromise any asserted liability over the objection of an Acquired CompanySellers. If Sellers elect not to direct the Contest and fail to provide such acknowledgment, Buyer then (x) Sellers shall have no right to participate in the Contest and (y) Purchasers, the Company or its Subsidiaries may pay, compromise or contest such Indemnifiable Tax Liability asserted liability in any reasonable manner it deems appropriate (in its their sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Contests. (ai) Upon receipt by BuyerAfter the Closing Date, Buyer and Seller shall each notify the other in writing within ten (10) days of the commencement of any Acquired audit or administrative or judicial proceeding affecting the Taxes or Tax attributes of the Company or any Affiliate thereof of a written its Subsidiaries; provided, however, that Buyer shall only have the obligation to notify Seller if the audit or administrative or judicial proceeding would, if determined adversely to the taxpayer, or after the lapse of time, be grounds for indemnification under this Section 10.01 or under Article VIII with respect to Taxes by Seller. Such notice shall contain factual information describing any asserted Tax liability and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If either Buyer or Seller fails to give the other party prompt notice of any pending an asserted Tax liability as required under this Agreement, the failure to give such notification shall not affect the indemnification provided hereunder except to the extent the other party shall have been actually prejudiced as a result of such failure or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to the indemnification obligations are increased as a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”)result of such failure.
(bii) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, In the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests case of an Acquired audit or administrative or judicial proceeding involving any Taxes or Tax attributes relating to any taxable years or periods ending on or before the Closing Date or any Straddle Period of the Company or Buyerany of its Subsidiaries, they Seller shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if have the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permittedright, at its expense, to be represented at each conference, hearing control the conduct of such audit or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Companyproceeding; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action may participate in connection with the conduct of such Tax proceeding, audit or proceeding at its own expense and (ii) Buyer Seller shall not settle, compromise or abandon settle any such Tax Proceeding audit or proceeding without obtaining the prior written consent of the SellersBuyer, 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 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 of any of the Company or any or its Subsidiaries for which Seller would be liable under Section 10.01(a) or under Article VIII, Seller may participate in the conduct of such audit or proceeding at its own expense and Buyer shall not settle any such audit or proceeding without the consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed; provided, further, that Seller’s right to participation and consent shall be limited to matters or issues involving the Company and its Subsidiaries.
Appears in 1 contract
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a Buyer agrees to give prompt written notice to Seller Representative of the receipt of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (by the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates Buyer’s Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity may be sought by any Buyer Indemnitee pursuant to this Article VII (a “Tax Claim”); provided, that failure to comply with this provision shall not affect a Buyer Indemnitee’s right to indemnification hereunder except to the extent the defense of the Claim is prejudiced thereby.
(b) Within fifteen (15) Business Days after receipt by Seller Representative of a notice respecting a Tax Claim, the Seller Representative may elect, so long as Sellers have an obligation to indemnify Buyer Indemnitees hereunder with respect to such Tax Claim, by written notice to Buyer, to contest the Tax Claim in the name of the Company. If Seller Representative so elects, Sellers shall be solely responsible for the defense of the item or items at issue to the extent it relates to a Pre-Closing Tax Period, except that (a) the Seller Representative will keep Buyer informed with respect to the commencement, status and nature of any such proceeding, and will reasonably cooperate with Buyer and consult with Buyer regarding the conduct of or positions taken in any such proceedings in the event the settlement would create a Tax liability on part of Buyer, and (b) Sellers will not enter into any settlement or otherwise compromise any such proceeding without the prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned or delayed) if such settlement would have the effect of materially increasing the Tax liability or materially reducing any Tax asset of the Company in respect of any Post-Closing Tax Period. Buyer will cause the Company to reasonably cooperate, in the contest of such Tax Claim by making relevant documents and employees available to Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion)and/or Seller Representative, and to execute such documents (including powers of attorney) as may be reasonably necessary to allow Sellers shall remain fully liable for such Indemnifiable Tax Liabilityand/or Seller Representative to conduct the defense.
(c) With respect to any other Tax Claim, including a Tax Claim related to a Straddle Period and a Tax Claim that the Seller does not elect to control, Buyer shall controlhave sole responsibility for the defense of the item or items at issue provided (a) Sellers will have the right (but not the duty) to participate in the defense of such proceeding and to employ counsel, at its their own expense, any Tax proceeding for a Straddle Period separate from counsel employed by Buyer, (b) Buyer will keep Sellers informed with respect to the commencement, status and nature of any Acquired Company; providedsuch proceeding, however, that (i) Buyer shall and will reasonably cooperate with Sellers and consult with Sellers before taking them regarding the conduct of or positions taken in any significant action in connection with such Tax proceeding, and (iic) Buyer shall will not settle, enter into any settlement or otherwise compromise or abandon any such Tax Proceeding proceeding without obtaining the prior written consent of the SellersSeller Representative if Sellers would be obligated to pay or indemnify with respect to a Tax under this Agreement, which consent shall will not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Contests. (ai) Upon 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 Buyer, any Acquired Company it or any Affiliate thereof of a its Affiliates of written notice of any pending or threatened Tax auditsexamination, examinations, protest proceedings, assessments audit or claims other administrative or judicial proceeding (a “Tax Contest”) that could give rise reasonably be expected to 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 claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (copy of the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, relevant portion of any Indemnifiable Tax Liabilitycorrespondence received from the taxing authority. If Sellers elect the recipient of such notice of a Tax Contest fails to so represent the interests of an Acquired Company or Buyerprovide such timely notice to such other Party, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not entitled to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in indemnification for any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action Taxes arising in connection with such Tax proceedingContest, 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 not settle, compromise or abandon any at its own expense control the defense and settlement of such Tax Proceeding 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 Tax Contest relating to Taxes for which both are liable hereunder, 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 an issue raised in any Tax Contest controlled by one Party or jointly controlled could materially affect the 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 final settlement without obtaining the prior written consent of the Sellersother Party, which consent shall not be unreasonably withheld. Where a Party reasonably withholds its consent to any final settlement, conditioned that Party may continue or delayedinitiate further proceedings, at its own expense, and 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.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Black Hills Corp /Sd/)
Contests. (ai) Upon receipt by Buyer, If notice of any Acquired legal proceeding with respect to Taxes of the Company or any Affiliate thereof of its Subsidiaries for which the Company Stockholders may reasonably be expected to be liable pursuant to Section 10.2(d) (each, a written “Tax Claim”) shall be received by a Party, the notified Party shall provide the other Party, in writing, notice of any pending or threatened such Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired CompanyClaim; provided, however, that (i) Buyer the failure of Parent to give the Stockholders’ Representative notice as provided herein shall consult with Sellers before taking any significant action in connection with such Tax proceedingnot relieve the Company Stockholders of their obligations under Article X, except to the extent that the Company Stockholders are actually and materially prejudiced thereby.
(ii) Buyer The Stockholders’ Representative shall have the right, at the expense of the Company Stockholders to the extent such Tax Claim is subject to indemnification by the Company Stockholders pursuant to Article X and the maximum potential liability of the Company and its Subsidiaries is less than the Cap, to elect to represent the interests of the Company and each of its Subsidiaries in any Tax Claim and to diligently prosecute such Tax Claim; provided, that (A) the Stockholders’ Representative shall not settle, compromise or abandon any settle such Tax Proceeding Claim without obtaining the prior written consent of the SellersParent, which consent shall not be unreasonably withheld, conditioned or delayeddelayed and (B) Parent shall be entitled to participate fully in the contest of such Tax Claim, including by receiving copies of any information requests, notices or other written materials received or prepared by the Stockholders’ Representative in connection with such Tax Claim and having the opportunity to make reasonable comments to any such written materials, attending all in-person or telephonic meetings with any Governmental Entity with respect to such Tax Claim, and receiving regular updates from the Stockholders’ Representative with respect to the status of such Tax Claim.
(iii) If the Stockholders’ Representative does not elect to control the contest, or the Stockholders’ Representative is not eligible to control the contest because the maximum potential liability exceeds the Cap, of a Tax Claim described in Section 7.2(b)(ii), Parent shall control and diligently prosecute such Tax Claim at the expense of the Company Stockholders pursuant to Article X (such expenses to be recovered solely from the Escrow Account); provided, that (A) Parent shall not settle such Tax Claim without the consent of the Stockholders’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed and (B) the Stockholders’ Representative shall be entitled to participate fully in the contest of such Tax Claim, including by receiving copies of any information requests, notices or other written materials received or prepared by Parent, the Company or its Subsidiaries in connection with such Tax Claim and having the opportunity to make reasonable comments to any such written materials, attending all in-person or telephonic meetings with any Governmental Entity with respect to such Tax Claim, and receiving regular updates from Parent with respect to the status of such Tax Claim.
Appears in 1 contract
Sources: Merger Agreement (Norwegian Cruise Line Holdings Ltd.)
Contests. (a) Upon Buyer and Seller will each promptly notify the other in writing upon its receipt by Buyer, of any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax auditsaudit or other examination by any Governmental Authority, examinations, protest or any judicial or administrative proceedings, assessments or claims that could give rise relating to Taxes of the Company (each, a claim for indemnity under Section 6.03 (an “Indemnifiable Tax LiabilityContest”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that no failure or delay in delivering such notice shall relieve any party of its obligations hereunder except to the extent that such party is actually and materially prejudiced by such failure or delay. If such Tax Contest relates solely to any Pre-Closing Tax Period (other than a Straddle Period), Seller 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 Buyer, to assume and thereafter conduct and control the defense of such Tax Contest (with counsel of Seller’s choice) and, for so long as Seller is conducting and controlling such defense, Buyer shall have the right, but not the obligation, to participate in such defense with separate counsel of its choosing at its sole cost and expense; provided, however, that Seller shall not be permitted to consent to the entry of any judgment or enter into any settlement of such Tax Contest which may adversely impact Buyer, the Company, or the Tax attributes of the Company without the prior written consent of Buyer (not to be unreasonably withheld, conditioned, or delayed). Unless and until Seller assumes the defense of such Tax Contest, Buyer may defend against such Tax Contest in any manner it may reasonably deem appropriate (with counsel of Buyer’s choice), in which case Seller (i) shall cooperate with Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceedingdefense and make available to Buyer and its Representatives all witnesses, pertinent records, materials, and information in or under their possession or control relating thereto as may be reasonably requested by Buyer, and (ii) shall have the right, but not the obligation, to participate in such defense with separate counsel of its choosing at its sole cost and expense. The conduct of such defense by Buyer shall not settle, compromise or abandon any be construed to be a waiver of Buyer’s right to indemnification with respect to such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayedContest.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Andover National Corp)
Contests. (ai) Upon Each of the Buyer, on the one hand, and the Seller, on the other hand (the "Recipient"), shall notify the other party in writing within 60 days of receipt by Buyer, any Acquired Company or any Affiliate thereof the Recipient of a written notice of any pending or threatened Tax audits, examinationsnotice of deficiency, protest proceedingsproposed adjustment, assessments assessment, examination or claims that other administrative or court proceeding, suit, dispute or other claim (a "Tax Claim") which could affect the liability for Taxes of such other party. If the Recipient fails to give rise such prompt notice to a claim the other party it shall not be entitled to indemnification for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “any Taxes arising in connection with such Tax Claim Notice”)if and to the extent that such failure to give notice materially and adversely affects the other party's right to participate in the Tax Claim.
(bii) Subject The Seller shall have the sole right to Section 6.06(c)represent the Company's interests in any Tax Claim relating to taxable periods ending on or before the Closing Date and to employ counsel of it choice at its expense. In the case of a Straddle Period, Sellers may elect the Seller shall be entitled to controlparticipate at its expense in any Tax Claim relating in any part to Taxes attributable to the portion of such Straddle Period deemed to end on or before the Closing Date and, through their Representativeswith the written consent of the Buyer, and at their the Seller's sole expense, may assume the compromise control of such entire Tax Claim. None of the Buyer, any of its affiliates, or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery any subsidiary may settle or otherwise dispose of any Tax Claim Notice (for which the Seller may have a liability under this Agreement, or reasonably soonerwhich may result in an increase in Seller's liability under this Agreement, if without the nature prior written consent of the Indemnifiable Tax Liability so requires) notify Buyer Seller, which consent may be withheld in the sole discretion of their intent to do sothe Seller, and Buyer shall cooperate, at the sole expense none of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer Seller or any of their respective its affiliates with respect to may settle or dispose of any Post-Tax Claim for which Buyer or the Company may have a liability under this Agreement, or which may result in an increase in Buyer's or the Company's tax liability for taxable periods ending after the Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not may be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent in the interests sole discretion of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax LiabilityBuyer.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Sources: Stock Purchase Agreement (Vlasic Foods International Inc)
Contests. (a) Upon receipt by Buyer, In the case of any Acquired Company or any Affiliate thereof of a written notice of Tax deficiency, proposed Tax adjustment, Tax assessment, Tax audit, Tax examination or other administrative or court proceeding, suit, dispute or other claim with respect to Taxes (a “Tax Claim”) relating to any pending Tax period ending on or threatened Tax auditsbefore the Closing Date that, examinations, protest proceedings, assessments or claims that could give rise if determined adversely to the Company would be grounds for a claim for indemnity under pursuant to this Section 6.03 (an “Indemnifiable 6.4, Purchaser shall upon receipt of such Tax Liability”)Claim, Buyer shall promptly give written notice thereof to Parent (promptly, but no later than 15 days, inform the “Shareholders of such Tax Claim Notice”).
and the Shareholders (b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their sole cost and expense) shall have the right to control the conduct of such Tax Claim and shall have the right to settle such Tax Claim; provided, the compromise or contesthowever, either administratively or (i) that Purchaser may fully participate in the courtsdispute of such Tax Claim, of any Indemnifiable Tax Liability. If Sellers elect to so represent (ii) the interests of an Acquired Company or Buyer, they Shareholders shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer keep Purchaser timely informed with respect to each aspect the commencement, status and nature of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting Claim and (iii) the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers Shareholders shall not settle, compromise or abandon dispose of any matter related to Indemnifiable Tax Liability Claim without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the SellersPurchaser, which consent shall not be unreasonably withheld, conditioned or delayed. In the case of any Tax Claim relating to the Taxes of any Straddle Period, Purchaser and the Shareholders may each participate, at their own expense, in the audit or proceeding, and the audit or proceeding shall be controlled by Purchaser or the Shareholders, whichever would bear the burden of the greatest portion of the adjustment; provided, however, that the party controlling the Straddle Period Tax Claim (i) shall not settle such audit or proceeding without the consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed and (ii) shall keep the other party timely informed with respect to the commencement, status and nature of any such Tax Claim. The failure by Purchaser to provide the notice contemplated by this Section 6.4(e) shall not affect the Shareholders’ indemnification obligations under Article VII.
Appears in 1 contract
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") Upon receipt by Buyershall be delivered, any Acquired sent, commenced, or initiated to or against Parent or the Company or any Affiliate thereof of a written notice of Subsidiary by any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer Taxing authority with respect to each aspect of 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 defense againstStockholders under this Agreement, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers Parent shall promptly notify Buyer Stockholders' Representative in writing after it settlesof such Tax Contest; provided that the failure to so notify shall not relieve the Stockholders of their indemnification obligations hereunder, compromises 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 abandons any claim Subsidiary's interest and to employ counsel of matters related to Indemnifiable Tax Liability, and their choice at their expense with respect to any such claim that could adversely affect an Acquired Company, Buyer 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 their respective affiliates with respect attorney or other documents or forms necessary in order to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related allow the Stockholders to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not control such contest and to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon settle any such Tax Proceeding without obtaining the prior written consent of the SellersContest (subject to Parent's consent, which consent 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 choice at its own expense with respect to any such Tax Contest relating to a period ending after the Closing Date (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, conditioned Stockholders' Representative may not, without Parent's consent, settle or delayed.otherwise dispose of any Tax Contest if such settlement or disposition could adversely affect the Tax liability of Parent or the Company or any Subsidiary for any Tax period or portion thereof beginning on or after the Closing Date. In the 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 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 Contest, and any such expense shall be considered a Tax Loss for which Parent is entitled to indemnification pursuant to Section 11.2. 33 38
Appears in 1 contract
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer Seller Parties in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an upon receipt by the Acquired CompanyEntities, Buyer or any of their respective affiliates with Buyer’s Affiliates of notice of any Tax Proceeding in respect of any of the Acquired Entities relating to any Post(i) Pre-Closing Tax Period or (ii) Straddle Period, provided that the failure of Buyer to give notice of a Tax Proceeding as provided in this Section 6.2(h) shall not relieve Seller of its obligations under Section 6.2 except to the extent Seller is materially prejudiced thereby. Such notification shall specify in reasonable detail the basis for such Tax Proceeding and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority.
(i) Seller shall have the right to control any Tax Proceeding relating to income Taxes in respect of an Acquired Entity for any Pre-Closing Tax Period; provided, Sellers however, that (i) Buyer shall have the right, at its sole cost and expense, to participate in any such Tax Proceeding, (ii) Seller shall provide Buyer with a timely and reasonably detailed account of each stage of such Tax Proceeding, (iii) Seller shall not settle, compromise or abandon any matter related to Indemnifiable such Tax Liability Proceeding without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditionedwithheld, conditioned or delayed; provided, further, that Buyer, at its own cost and expense, may control and contest any Tax Proceeding for which Seller would otherwise have the right to control under this Section 6.2(h)(i) if Seller declines or fails to control such Tax Proceeding; provided, further, however, that if Buyer exercises its right to control any Tax Proceeding under the preceding clause, Buyer shall (A) provide Seller with a timely and reasonably detailed account of each stage of such Tax Proceeding, (B) not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable (C) consult with Seller in good faith concerning the appropriate strategy for contesting such Indemnifiable Tax LiabilityProceeding.
(cii) Buyer shall have the right to control, at its own expense, any Tax proceeding Proceeding in respect of an Acquired Entity for a any Pre-Closing Tax Period other than related to income Taxes and for any Straddle Period with respect to any Acquired CompanyPeriod; provided, however, that (i) Seller shall have the right to participate in any such Tax Proceeding, (ii) Buyer shall consult provide Seller with Sellers before taking any significant action in connection with a timely and reasonably detailed account of each stage of such Tax proceedingProceeding and consult in good faith concerning the appropriate strategy for contesting the Tax Proceeding, and (iiiii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the SellersSeller, which consent shall not be unreasonably withheld, conditioned withheld or delayed, if such settlement, compromise or abandonment could affect Seller’s or any of its owners’ liability for Taxes.
Appears in 1 contract
Sources: Equity Securities Purchase Agreement (Meridian Waste Solutions, Inc.)
Contests. (a) Upon In the event any Governmental Authority determines that Distribution Provider’s receipt by Buyerof payments or property constitutes income that is subject to taxation, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax auditsDistribution Provider shall notify Interconnection Customer, examinationsin writing, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Calendar Days of delivery receiving notification of any Tax Claim Notice (or reasonably soonersuch determination by a Governmental Authority. Upon the timely written request by Interconnection Customer and at Interconnection Customer's sole expense, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do soDistribution Provider may appeal, and Buyer shall cooperateprotest, at the sole expense of Sellers, in the defense againstseek abatement of, or compromise or settlement of, any claim in any otherwise oppose such proceedingdetermination. In that event, Sellers shall reasonably Upon Interconnection Customer's written request and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its sole expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any Distribution Provider may file a claim of matters related to Indemnifiable Tax Liability, and for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such claim that could adversely affect an Acquired Companya determination. Distribution Provider reserves the right to make all decisions with regard to the prosecution of such appeal, Buyer protest, abatement or any other contest, including the selection of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, counsel and compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining settlement of the prior written consent claim, but Distribution Provider shall keep Interconnection Customer informed, shall consider in good faith suggestions from Interconnection Customer about the conduct of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion)contest, and Sellers shall remain fully liable for reasonably permit Interconnection Customer or an Interconnection Customer representative to attend contest proceedings. Interconnection Customer shall pay to Distribution Provider on a periodic basis, as invoiced by Distribution Provider, Distribution Provider’s documented reasonable costs of prosecuting such Indemnifiable Tax Liability.
(c) Buyer shall controlappeal, at its own expenseprotest, abatement or other contest. At any Tax proceeding for time during the contest, Distribution Provider may agree to a Straddle Period settlement either with respect Interconnection Customer's consent or after obtaining written advice from nationally-recognized tax counsel, selected by Distribution Provider, but reasonably acceptable to any Acquired Company; provided, howeverInterconnection Customer, that (i) Buyer the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection Customer's obligation shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining be based on the prior written consent amount of the Sellerssettlement agreed to by Interconnection Customer, which or if a higher amount, so much of the settlement that is supported by the written advice from nationally-recognized tax counsel selected under the terms of the preceding sentence. The settlement amount shall be calculated on a fully-grossed-up basis to cover any related cost consequences of the current tax liability. Any settlement without Interconnection Customer's consent shall not be unreasonably withheld, conditioned or delayedsuch written advice will relieve Interconnection Customer from any obligation to indemnify Distribution Provider for the tax at issue in the contest.
Appears in 1 contract
Sources: Generator Interconnection Agreement
Contests. (ai) Upon A party hereto must notify the other party in writing within thirty (30) days or such shorter period as may be required thereby of receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax auditstax examination, examinations, protest proceedings, assessments audit or claims other administrative or judicial proceeding that could give rise reasonably be expected to result in an indemnification obligation of such other party pursuant to this Agreement (a claim for indemnity under Section 6.03 (an “Indemnifiable "Tax Liability”Contest"), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect the recipient of such notice of a Tax Contest fails to so represent provide such notice to the interests of an Acquired Company or Buyerother party, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not entitled to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in indemnification for any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action Taxes arising in connection with such Tax proceedingContest to the extent, and 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.
(ii) Buyer If a Tax Contest directly relates to any Taxes for which Sellers are liable in full hereunder, Sellers shall not settle, compromise or abandon any at their expense control the defense and settlement of such Tax Proceeding without obtaining Contest. If such Tax Contest directly relates to any Taxes for which Purchaser is liable in full hereunder, Purchaser shall at its own expense control the prior written consent defense and settlement of such Tax Contest.
(iii) Notwithstanding any other provision of this Agreement to 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 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 benefits in taxable periods ending subsequent to the Closing Date, Purchaser shall pay to Sellers, which consent shall not be unreasonably withheldupon Sellers' written request, conditioned an amount equal to the present value of the reduction in 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 an assumed tax rate of 40.0% and by assuming that such reduction in income Taxes will occur in the year or delayedyears of anticipated reversal.
Appears in 1 contract
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action Each Member's Stockholder (in connection with such Tax proceedingthe case of PCS, IPLLC, and in the case of Kerman, KCI) and their duly appointed representatives (iicollectively, the "MEMBER REPRESENTATIVE") Buyer shall not settlehave the authority to control any audit or examination by any taxing authority, compromise and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or abandon other adjustment of Taxes of or relating to any such Tax Proceeding liability of a Member for its Member Pre-Closing Periods; PROVIDED, HOWEVER, that no Member Representative shall, without obtaining the prior written consent of the SellersUbiquiTel Parent, which consent shall not be unreasonably withheld, conditioned enter into any settlement of any contest or delayedotherwise 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 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 Tax deficiency or other adjustment of Taxes of or relating to any liability of a Member for Taxes for any taxable year or 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 Member Representative's Stockholder Group Indemnitors.
(ii) UbiquiTel Parent agrees to notify in writing the Member Representative of any affected Member within ten business days of receipt of any notice, 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 forward all written notifications and other communications from any Tax authority received by UbiquiTel relating to any Tax audit or other proceeding relating to the Tax liability of or 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 directly or indirectly attributable to any such written notification or other communication, unless such failure materially prejudices the ability of the Member Representative's Stockholder Group to defend or dispute such examination, claim, settlement, adjustment or related matter.
(iii) This Section 11.6(e) shall be subject to the provisions of Article 12 of this Agreement.
Appears in 1 contract
Contests. (ai) Upon receipt by BuyerAfter the Closing Date, Parent Bank shall promptly notify Company in writing of the proposed assessment of the commencement of any Acquired Audit or court proceedings or of any demand or claim on Parent Bank or Company Bank or any Affiliate thereof Company Bank Subsidiary which, if determined adversely to the taxpayer or after the lapse of a written time, would be grounds for indemnification by Company under Section 5.5(a). Such notice shall contain factual information (to the extent known to Parent Bank or Company Bank) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability. If Parent Bank fails to give Company prompt notice of any pending or threatened an asserted Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under liability as required by this Section 6.03 (an “Indemnifiable Tax Liability”5.5(e), Buyer and such failure results in actual prejudice to Company’s ability to contest the asserted Tax liability, then Company shall promptly give written notice thereof be relieved of its obligation to Parent (indemnify for any loss arising out of such asserted Tax liability to the “Tax Claim Notice”)extent of such actual prejudice.
(bii) Subject In the case of an Audit or court proceeding (a “Contest”) that relates to Section 6.06(c)a taxable period ending prior to or on the Closing Date, Sellers including any Short Period or Interim Period, Company shall have the sole right, at its expense, to control the conduct of such Contest.
(iii) With respect to periods beginning before the Closing Date and ending after the Closing Date, Company may elect to controldirect, through their Representativescounsel of its own choosing, any Contest with respect to any asserted Tax liability with respect to which Parent Bank may seek an indemnity from Company under Section 5.5(a); provided that Company shall consult with Company Bank regarding any such Contest and at their expenseshall allow Company Bank to participate in any such proceeding and provided, the compromise further, that no settlement or contest, either administratively or in the courts, other disposition of any Indemnifiable claim for Tax Liabilitywhich would adversely affect Company Bank, any Company Bank Subsidiary or Parent Bank in such taxable periods or subsequent taxable periods shall be agreed to without Company Bank’s prior written consent, such consent not to be unreasonably withheld or delayed. If Sellers elect Company elects to so represent the interests of an Acquired Company or Buyerdirect a Contest, they shall within thirty (30) Business Days 60 days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requires) liability notify Buyer Parent Bank of their intent to do so, and Buyer Parent Bank shall cooperate and shall cause Company Bank and the Company Bank Subsidiaries to cooperate, at the sole expense of SellersCompany’s expense, in each phase of such Contest. If Company elects not to direct the defense againstContest, Parent Bank or Company Bank may pay, compromise, or compromise or settlement of, any claim in any contest such proceedingasserted liability. In that eventsuch a case, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, neither Parent Bank nor Company Bank may settle or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting asserted liability without the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of BuyerCompany, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(civ) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect Parent Bank and Company agree to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceedingcooperate, and (ii) Buyer shall not settleParent Bank agrees to cause Company Bank and the Company Bank Subsidiaries to cooperate, in the defense against or compromise of any claim in any Audit or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayedcourt proceeding.
Appears in 1 contract
Sources: Merger Agreement (Unionbancal Corp)
Contests. (a) Upon receipt by BuyerAfter the Closing, each party shall promptly notify the other party in writing of the proposed assessment or the commencement of any Acquired Company Tax audit or administrative or judicial proceeding or of any Affiliate thereof demand or claim on the other party or its Affiliates which, if determined adversely to the taxpayer or after the lapse of a written time, could be grounds for indemnification under Section 7.01. Such notice shall contain factual information (to the extent known to such party) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability. If either party fails to give the other party prompt notice of an asserted Tax liability as required by this Section 7.03, then such party shall not have any pending or threatened obligation to indemnify for any loss arising out of such asserted Tax auditsliability, examinations, protest proceedings, assessments or claims but only to the extent that could failure to give rise such notice results in a detriment to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”)such party.
(b) Subject In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expensetaxable periods ending on or before the date of the Closing, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they Seller shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at have the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permittedright, at its expense, to be represented at each conferencecontrol the conduct of such Contest; provided, hearing however, that the Seller shall not settle or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons compromise any claim of matters related to Indemnifiable Tax Liability, and asserted liability with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability Contest without obtaining the prior written consent of Buyerthe Purchaser if such settlement or compromise would adversely affect the Tax liability of the Purchaser, its Affiliates or the Companies in a post-Closing Tax period, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer With respect to Straddle Periods, the Seller may elect to direct and control, through counsel of its own choosing, any Contest involving any asserted Tax liability with respect to which indemnity may be sought from the Seller pursuant to Section 7.01 if the amount of such asserted Tax liability attributable to Excluded Taxes, in the Purchaser’s good faith judgment, equals or exceeds the amount of such asserted Tax liability that is not attributable to Excluded Taxes, determined in a manner consistent with Section 7.01(b). If the Seller elects to direct such Contest, the Seller shall controlwithin 60 days of receipt of the notice of asserted Tax liability notify the Purchaser of its intent to do so, and the Purchaser shall reasonably cooperate and shall cause the Companies to reasonably cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects to direct such Contest, then the Purchaser may participate in such Contest, at the Purchaser’s expense. If the Seller elects not to direct the Contest, the Purchaser may assume control of such Contest (at the Purchaser’s expense). If the Purchaser assumes control of such Contest (whether because the Seller elects not to assume control or because it is not entitled to control such Contest), then the Seller may participate, at its own expense, in the Contest. Neither the Seller nor the Purchaser may settle or compromise any Tax proceeding for a Straddle Period asserted liability with respect to any Acquired Company; provided, however, that (iContest governed by this Section 7.03(c) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellersother party, which consent shall not be unreasonably withheld, conditioned withheld or delayed.
(d) The Purchaser and the Seller agree to reasonably cooperate, and agree to cause their Affiliates to reasonably cooperate, in the defense against or compromise of any claim in any Contest.
Appears in 1 contract
Contests. (a) Upon receipt After the Closing, the Purchaser shall reasonably promptly after becoming aware notify the Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding and shall also separately notify the Seller in writing of any demand or claim on the Purchaser or the Company which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification by Buyer, the Seller under this Article VII. Such notice shall contain factual information (to the extent known to the Purchaser or the Company) describing the asserted Tax liability in reasonable detail and shall include copies of any Acquired Company notice or other document received from any Affiliate thereof taxing authority in respect of a written any such asserted Tax liability. If the Purchaser fails to give the Seller reasonably prompt notice of an asserted Tax liability as required by this Section 7.04, then (i) if the Seller is precluded by the failure to give reasonably prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then the Seller shall not have any pending obligation to indemnify for any loss or threatened damage arising out of such asserted Tax auditsliability, examinationsand (ii) if the Seller is not so precluded from contesting but such failure to give reasonably prompt notice results in an actual detriment to the Seller, protest proceedings, assessments or claims that could give rise then any amount which the Seller is otherwise required to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer pay the Purchaser pursuant to this Article VII with respect to such liability shall promptly give written notice thereof to Parent (be reduced by the “Tax Claim Notice”)amount of such detriment.
(b) Subject to Section 6.06(c)The Seller, Sellers promptly after receiving notice, may elect to controldirect, through their Representatives, counsel of 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 against the compromise Seller under this Article VII (any such audit, claim for refund or contest, either administratively or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability are referred to herein collectively as a "CONTEST"). If Sellers elect the Seller elects to so represent direct the interests Contest of an Acquired asserted Tax liability, the Purchaser shall cooperate in all reasonable respects and shall cause the Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent its successor to do so, and Buyer shall cooperatecooperate in all reasonable respects, at the sole expense of SellersSeller's expense, in each phase of such Contest. If the defense against, Seller does not either reasonably promptly give notice to direct the Contest or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect commence the direction of the defense againstContest or if it contests its obligation to indemnify under Section 7.01, the Purchaser or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Company may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlcontest, at its own expense, such asserted liability without waiving any of its rights to indemnification hereunder. However, in such case, neither the Purchaser nor the Company 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 or delayed. In any event, each of the Purchaser (or the Company) and the Seller may participate, at their own expense, in the Contest. If the Seller chooses to direct the Contest, 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 the Seller as it may designate to represent the Purchaser or the Company or its successor in the Contest insofar as the Contest involves an asserted Tax proceeding liability for a Straddle Period which the Seller would be liable under this Article VII, PROVIDED that the Seller shall not, without the Purchaser's consent, which shall not be unreasonably withheld or delayed, (x) agree to any settlement with respect to any Acquired Tax if such settlement would likely materially adversely affect the future Tax liability of the Purchaser or the Company for any periods ending after the Reference Date other than through the use of losses or credits arising in periods or portions thereof ending on or prior to the Reference Date or (y) agree to any settlement of such claim or cease to defend against such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief would be imposed against the Purchaser or the Company. If, with respect to any proposed settlement referred to in clause (x) of the previous sentence, the Seller proposes in good faith to settle a claim, suit, action or proceeding with respect to any Tax, which settlement offer is accepted by the relevant taxing authority, the Purchaser may elect to continue to contest such claim, suit, action or proceeding; providedPROVIDED that notwithstanding how such matter is ultimately settled or decided, howeverthe liability of the Seller with respect to such claim, suit, action or proceeding shall be no greater than the amount which would have been payable if the Purchaser had consented to the settlement proposed by the Seller.
(c) The Purchaser shall have the sole obligation and right to direct, at its own expense, a Contest regarding any Tax Return relating to the Company for any taxable period commencing after the Reference Date (or the Closing Date in the case of a Tax Return which is filed on a combined, consolidated, unitary or similar basis); PROVIDED, HOWEVER, that (i) Buyer the Purchaser shall advise and consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon the Seller regarding the status of any such Tax Proceeding Contest that involves the Company and provided further that, without obtaining the prior written consent of the Sellers, Seller (which consent shall not be unreasonably withheld, conditioned withheld or delayed), and except as provided in Section 7.04(b), the Purchaser shall not (i) make any election, change any annual accounting period or adopt or change any accounting method if any such election, adoption or change would have the effect of increasing the tax liability of the Seller in any tax period or portion thereof ending on or before the Reference Date, or (ii) file any amended return, enter into any closing agreement, settle any tax claim or assessment relating to the Company, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any tax claim or assessment relating to the Company or take any action, if any such amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the tax liability of the Seller in any tax period or portion thereof ending on or before the Reference Date (or the Closing Date in the case of a Tax Return which is filed on a combined, consolidated, unitary or similar basis), except to the extent the Seller is to be fully indemnified by the Purchaser against any such increase under Section 7.05 or otherwise.
Appears in 1 contract
Sources: Stock Purchase Agreement (White Mountains Insurance Group Inc)
Contests. (a) Upon receipt by Buyer, Shareholders will allow ▇▇▇▇▇ and its counsel to participate at its own expense in any Acquired Company or any Affiliate thereof audits of a written notice 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 pending or threatened Tax audits, examinations, protest proceedings, assessments or claims 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 could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (owned ▇▇▇▇▇ both before and after the “Tax Claim Notice”)Closing Date.
(b) Subject 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 6.06(c), Sellers 8.01(a) with respect to such liability shall be reduced by the amount of such detriment.
(c) Shareholders may elect to controldirect, through counsel of their Representatives, own choosing and at their own expense, the compromise any audit, claim for refund and administrative or contestjudicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, either administratively claim for refund or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability are referred to herein collectively as a "Contest"). If Sellers Shareholders elect to so represent direct the interests Contest of an Acquired Company or Buyerasserted Tax liability, they shall shall, within thirty (30) Business Days calendar days of delivery receipt of the notice of asserted Tax liability (but not less than five (5) days before the due date of any Tax Claim Notice (protest or reasonably soonerother claim in respect thereof), if the nature of the Indemnifiable Tax Liability so requires) notify Buyer Bancorp of their intent to do soso and acknowledge in writing, in form and Buyer substance satisfactory to Bancorp, their obligation to indemnify Bancorp in full therefor. Bancorp shall cooperatecooperate 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 the sole expense of Sellerstheir own expense, in the defense against, Contest and (ii) neither Bancorp nor ▇▇▇▇▇ shall not settle or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect asserted liability over the objection of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayedShareholders. If Sellers Shareholders elect not to represent direct the interests of an Acquired CompanyContest and fail to provide such acknowledgment, Buyer then (x) Shareholders shall have no right to participate in the Contest and (y) Bancorp or ▇▇▇▇▇ may pay, compromise or contest such Indemnifiable Tax Liability asserted liability in any reasonable manner it deems appropriate (in its their sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Sources: Merger Agreement (Bancorp, Inc.)
Contests. (a) Upon receipt After the Closing, the Purchaser shall reasonably promptly after becoming aware thereof notify the Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding and shall also separately notify the Seller in writing of any demand or claim on the Purchaser which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification by Buyer, the Seller under this Article VII. Such notice shall contain factual information (to the extent known to the Purchaser) describing the asserted Tax liability in reasonable detail and shall include copies of any Acquired Company notice or other document received from any Affiliate thereof taxing authority in respect of a written any such asserted Tax liability. If the Purchaser fails to give the Seller reasonably prompt notice of an asserted Tax liability as required by this Section 7.04, then (i) if the Seller is precluded by the failure to give reasonably prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then the Seller shall not have any pending obligation to indemnify for any loss or threatened damage arising out of such asserted Tax auditsliability, examinationsand (ii) if the Seller is not so precluded from contesting but such failure to give reasonably prompt notice results in an actual detriment to the Seller, protest proceedings, assessments or claims that could give rise then any amount which the Seller is otherwise required to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer pay the Purchaser pursuant to this Article VII with respect to such liability shall promptly give written notice thereof to Parent (be reduced by the “Tax Claim Notice”)amount of such detriment.
(b) Subject to Section 6.06(c)The Seller, Sellers promptly after receiving notice, may elect to controldirect, through their Representatives, counsel of 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 against the compromise Seller under this Article VII (any such audit, claim for refund or contest, either administratively or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability are referred to herein collectively as a "CONTEST"). If Sellers elect the Seller elects to so represent direct the interests Contest of an Acquired Company or Buyerasserted Tax liability, they the Purchaser shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperatecooperate in all reasonable respects, at the sole expense of SellersSeller's expense, in each phase of such Contest. If the defense against, Seller does not either reasonably promptly give notice to direct the Contest or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect commence the direction of the defense againstContest or if it contests its obligation to indemnify under Section 7.01, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Purchaser may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlcontest, at its own expense, such asserted liability without waiving any of its rights to indemnification hereunder. However, in such case, the Purchaser may not 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 or delayed. In any event, each of the Purchaser and the Seller may participate, at their own expense, in the Contest. If the Seller chooses to direct the Contest, the Purchaser shall promptly empower (by power of attorney and such other documentation as may be appropriate) such representatives of the Seller as Seller may designate to represent the Purchaser or its successor in the Contest insofar as the Contest involves an asserted Tax proceeding liability for a Straddle Period which the Seller would be liable under this Article VII. If, with respect to any Acquired Companyproposed settlement referred to in clause (x) of the previous sentence, the Seller proposes in good faith to settle a claim, suit, action or proceeding with respect to any Tax, which settlement offer is accepted by the relevant taxing authority, the Purchaser may elect to continue to contest such claim, suit, action or proceeding; providedPROVIDED that notwithstanding how such matter is ultimately settled or decided, howeverthe liability of the Seller with respect to such claim, suit, action or proceeding shall be no greater than the amount which would have been payable if the Purchaser had consented to the settlement proposed by the Seller.
(c) The Purchaser shall have the sole obligation and right to direct, at its own expense, a Contest regarding any Tax Return for any taxable period commencing after the Closing Date in the case of a Tax Return which is filed on a combined, consolidated, unitary or similar basis with the Purchaser; PROVIDED, HOWEVER, that (i) Buyer the Purchaser shall advise and consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon the Seller regarding the status of any such Contest that involves an asserted Tax Proceeding liability for which the Seller would be liable under this Article VII and PROVIDED, FURTHER, that, Purchaser shall not, without obtaining the prior written consent of the Sellers, Seller (which consent shall not be unreasonably withheld, conditioned withheld or delayed) settle any such contest.
Appears in 1 contract
Sources: Asset Purchase Agreement (White Mountains Insurance Group LTD)
Contests. (a1) Upon receipt After the Closing, the Purchaser shall reasonably promptly after becoming aware notify the Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding and shall also separately notify the Seller in writing of any demand or claim on the Purchaser or the Company which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification by Buyer, the Seller under this Article VII. Such notice shall contain factual information (to the extent known to the Purchaser or the Company) describing the asserted Tax liability in reasonable detail and shall include copies of any Acquired Company notice or other document received from any Affiliate thereof taxing authority in respect of a written any such asserted Tax liability. If the Purchaser fails to give the Seller reasonably prompt notice of an asserted Tax liability as required by this Section 7.04, then (i) if the Seller is precluded by the failure to give reasonably prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then the Seller shall not have any pending obligation to indemnify for any loss or threatened damage arising out of such asserted Tax auditsliability, examinationsand (ii) if the Seller is not so precluded from contesting but such failure to give reasonably prompt notice results in an actual detriment to the Seller, protest proceedings, assessments or claims that could give rise then any amount which the Seller is otherwise required to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer pay the Purchaser pursuant to this Article VII with respect to such liability shall promptly give written notice thereof to Parent (be reduced by the “Tax Claim Notice”)amount of such detriment.
(b2) Subject to Section 6.06(c)The Seller, Sellers promptly after receiving notice, may elect to controldirect, through their Representatives, counsel of 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 against the compromise Seller under this Article VII (any such audit, claim for refund or contest, either administratively or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability are referred to herein collectively as a "Contest"). If Sellers elect ------- the Seller elects to so represent direct the interests Contest of an Acquired asserted Tax liability, the Purchaser shall cooperate in all reasonable respects and shall cause the Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent its successor to do so, and Buyer shall cooperatecooperate in all reasonable respects, at the sole expense of SellersSeller's expense, in each phase of such Contest. If the defense against, Seller does not either reasonably promptly give notice to direct the Contest or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect commence the direction of the defense againstContest or if it contests its obligation to indemnify under Section 7.01, the Purchaser or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Company may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlcontest, at its own expense, such asserted liability without waiving any Tax proceeding for a Straddle Period with respect of its rights to indemnification hereunder. However, in such case, neither the Purchaser nor the Company may settle or compromise any Acquired Companyasserted liability over the objection of the Seller; provided, however, that the Seller's consent to settlement or compromise shall -------- ------- not be unreasonably withheld or delayed. In any event, each of the Purchaser (ior the Company) Buyer and the Seller may participate, at their own expense, in the Contest. If the Seller chooses to direct the Contest, 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 the Seller as it may designate to represent the Purchaser or the Company or its successor in the Contest insofar as the Contest involves an asserted Tax liability for which the Seller would be liable under this Article VII, provided that the Seller shall not, without the -------- Purchaser's consent, which shall not be unreasonably withheld or delayed, (x) agree to any settlement with respect to any Tax if such settlement would likely materially adversely affect the future Tax liability of the Purchaser or the Company for any periods ending after the Reference Date other than through the use of losses or credits arising in periods or portions thereof ending on or prior to the Reference Date or (y) agree to any settlement of such claim or cease to defend against such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief would be imposed against the Purchaser or the Company. If, with respect to any proposed settlement referred to in clause (x) of the previous sentence, the Seller proposes in good faith to settle a claim, suit, action or proceeding with respect to any Tax, which settlement offer is accepted by the relevant taxing authority, the Purchaser may elect to continue to contest such claim, suit, action or proceeding; provided -------- that notwithstanding how such matter is ultimately settled or decided, the liability of the Seller with respect to such claim, suit, action or proceeding shall be no greater than the amount which would have been payable if the Purchaser had consented to the settlement proposed by the Seller.
(3) The Purchaser shall have the sole obligation and right to direct, at its own expense, a Contest regarding any Tax Return relating to the Company for any taxable period commencing after the Reference Date (or the Closing Date in the case of a Tax Return which is filed on a combined, consolidated, unitary or similar basis); provided, however, that the Purchaser shall advise and -------- ------- consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon the Seller regarding the status of any such Tax Proceeding Contest that involves the Company and provided further that, without obtaining the prior written consent of the Sellers, Seller (which consent shall not be unreasonably withheld, conditioned withheld or delayed), and except as provided in Section 7.04(b), the Purchaser shall not (i) make any election, change any annual accounting period or adopt or change any accounting method if any such election, adoption or change would have the effect of increasing the tax liability of the Seller in any tax period or portion thereof ending on or before the Reference Date, or (ii) file any amended return, enter into any closing agreement, settle any tax claim or assessment relating to the Company, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any tax claim or assessment relating to the Company or take any action, if any such amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the tax liability of the Seller in any tax period or portion thereof ending on or before the Reference Date (or the Closing Date in the case of a Tax Return which is filed on a combined, consolidated, unitary or similar basis), except to the extent the Seller is to be fully indemnified by the Purchaser against any such increase under Section 7.05 or otherwise.
Appears in 1 contract
Contests. (a) Upon receipt by BuyerAfter the Closing Date, the Purchaser shall promptly notify the Sellers in writing of the commencement of any Acquired Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, the Company or the Subsidiary which may affect the Tax Liability of the Sellers or any Affiliate thereof affiliate of a written the Sellers (including the Company). Such notice shall contain factual information (to the extent known to the Purchaser, the Company or the Subsidiary) describing the asserted Tax liability in reasonable detail and shall include copies of any pending notice or threatened other document received from any taxing authority in respect of any such asserted Tax audits, examinations, protest proceedings, assessments or claims that could liability. The Purchaser's failure to give rise notice to a claim for indemnity the Sellers as provided hereunder shall not affect the Sellers' liabilities under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof this section except to Parent (the “Tax Claim Notice”)extent the Sellers are prejudiced thereby.
(b) Subject to Section 6.06(c), The Sellers may elect to controldirect, through counsel of their Representatives, own choosing and at their its own expense, any audit, claim for refund and administrative or judicial proceeding to the compromise extent involving any asserted liability arising with respect to the Pre-Closing Period (any such audit, claim for refund or contest, either administratively or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability is referred to herein as a "Contest"). If the Sellers elect to so represent the interests of an Acquired Company or Buyerdirect a Contest, they shall shall, within thirty (30) Business Days 30 calendar days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable notice of asserted Tax Liability so requiresliability pursuant to paragraph (a) of this Section 9.05, notify Buyer the Purchaser of their intent to do so, and Buyer the Purchaser shall cooperate and shall cause the Company and the Subsidiary to cooperate, at the sole expense of the Sellers, in the defense against, or compromise or settlement of, any claim in any each phase of such proceedingContest. In that any event, prior to Closing, the Purchaser and the Sellers shall reasonably take all steps to empower and in good faith consult with Buyer with respect cause the Company and the Subsidiary to each aspect promptly empower (by power of the defense against, or compromise or settlement of, any attorney and such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall other documentation as may be permitted, at its expense, to be represented at each conference, hearing or meeting with necessary and appropriate) such representatives of the pertinent taxing authority (Sellers as the Sellers may designate to represent the Company and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settlesthe Subsidiary for any -47- 48 audit, compromises claim for refund and administrative or abandons any claim of matters related to Indemnifiable Tax Liabilityjudicial proceeding for the years 1997, 1998, 1999 and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed2000. If the Sellers elect not to represent direct the interests Contest or fail to notify the Purchaser of an Acquired Companytheir election as herein provided, Buyer the Purchaser, the Company and/or the Subsidiary may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlContest, at its own the Seller's expense, such asserted Tax liability. However, in each such case, none of the Purchaser, the Company, or the Subsidiary may settle or compromise any asserted Tax proceeding for a Straddle Period with respect to any Acquired Companyliability without the express written consent of the Sellers; provided, however, that such consent to settlement or compromise shall not be unreasonably withheld; and provided, further, that any settlement or compromise in violation of the preceding sentence shall release the Sellers of their obligation pay such Taxes pursuant to Section 9.01 hereof. In any event, 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 (iby power of attorney and such other documentation as may be necessary and appropriate) Buyer 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.
(c) 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 before taking or any significant action affiliate of the Sellers with respect to the Pre-Closing Period, the Sellers shall have the right to participate in connection with such Contest. Additionally, in each such case, neither the Purchaser nor the Company may settle or compromise any asserted Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding liability without obtaining the prior express written consent of the Sellers; provided, which however, that such consent to settlement or compromise shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Sources: Purchase Agreement (Dial Corp /New/)
Contests. (a) Upon receipt by Buyer, The defense of proceedings for the assessment as to any Acquired Company taxable period or portion thereof ending on or before the Deconsolidation Date as to any Affiliate thereof of a written notice of any pending Subgroup or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery Subgroup Member of any Tax Claim Notice (or reasonably sooner, if deficiencies and the nature prosecution of any proceedings for the Indemnifiable Tax Liability so requires) notify Buyer assertion of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer refund claims which arise with respect to each aspect or which relate to any member of the defense againstTCI Affiliated Group, whether or compromise not attributable to such Subgroup or settlement ofSubgroup Member, any and regardless of whether such Indemnifiable Tax Liability. Without limiting tax period or portion thereof occurs before or after the generality of the foregoingEffective Date, Buyer shall be permittedconducted by TCI in such manner, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settleincluding through deferral, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyersettlement, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (as TCI in its sole discretion)discretion shall determine, and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, provided that (i) Buyer shall TCI will consult with Sellers before taking and keep any significant action in connection with affected Subgroup or Subgroup Member informed of the status of such Tax proceeding, matters and (ii) Buyer shall TCI will not settle, compromise or abandon settle any assessment for which such Tax Proceeding Subgroup or Subgroup Member would have an indemnification obligation hereunder or any tax refund claim attributable to such Subgroup or Subgroup Member without obtaining the prior written consent of such Subgroup or Subgroup Member, as the Sellerscase may be, which consent shall not be unreasonably withheld. If any Subgroup or Subgroup Member shall consent to any proposed compromise or settlement, conditioned then such Subgroup or delayedSubgroup Member as a consequence waives any and all present and future claims against TCI relating to such compromise or settlement between TCI and the IRS or other taxing authority, regardless of whether such compromise or settlement allegedly improperly causes an overstatement of the liability of such Subgroup or Subgroup Member to TCI or another member of the TCI Affiliated Group, or whether such Subgroup or Subgroup Member could have reached a more favorable agreement with the IRS or other taxing authority on a separate company basis. If any affected Subgroup or Subgroup Member shall not consent to such compromise or settlement, TCI shall renegotiate such agreement, in cooperation with such Subgroup or Subgroup Member, and at the expense of such Subgroup or Subgroup Member. Any compromise or settlement which results from such renegotiation will not be entered into without the consent of both TCI and such Subgroup or Subgroup Member. TCI will bear all costs and expenses associated with the defense of such deficiency proceedings or the prosecution of such refund claims, except that the affected Subgroup or Subgroup Member shall bear the portion, if any, of such costs and expenses provided for in Section F.1. hereof. TCI and such Subgroup or Subgroup Member will execute and deliver such waivers, consents, petitions, refund claims, complaints, powers of attorney and other documents which may be necessary or appropriate in connection with the defense, prosecution or resolution of any such proceedings for assessment of income tax deficiencies or refund claims.
Appears in 1 contract
Sources: Tax Sharing Agreement (Tele Communications Inc /Co/)
Contests. (a) Upon receipt by BuyerAfter the Closing, the Purchaser shall promptly notify the Seller in writing of any written proposed assessment, or any commencement of any Tax audit or administrative or judicial proceeding, or of any written demand or claim on the Purchaser, any Acquired of its Affiliates, the Company or any Affiliate thereof Subsidiary which, if determined adversely to the taxpayer or after the lapse of a written time, could be grounds for indemnification by the Seller under Section 7.01. Such notice shall contain factual information (to the extent known to the Purchaser, any of its Affiliates, the Company or any Subsidiary) describing the asserted Tax liability in reasonable detail and shall include copies of any pending notice or threatened other document received from any taxing authority in respect of any such asserted Tax auditsliability. If the Purchaser fails to provide the Seller such prompt notice, examinationssuch failure shall not release the Seller from any of its obligations to indemnify for any Loss arising out of such asserted Tax liability, protest proceedings, assessments or claims except to the extent that could give rise due to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (such failure the “Tax Claim Notice”).Seller was actually prejudiced. 49
(b) Subject In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates solely to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expenseExcluded Taxes, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they Seller shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at have the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permittedright, at its expense, to be represented at each conferencecontrol the conduct of such Contest and to settle or compromise any asserted Tax liability in its sole and absolute discretion; provided that if such settlement or compromise results in a material detriment to the Purchaser, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer any Subsidiary or any of their respective affiliates with respect to any Post-Affiliates in a taxable period or periods following the Closing Tax PeriodDate, Sellers the Seller shall not settle, settle or compromise or abandon any matter related to Indemnifiable asserted Tax Liability liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired CompanyPurchaser; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned; and provided, further, that if consent is withheld by the Purchaser, the Purchaser or the Company shall bear, and promptly reimburse the Seller and its Affiliates for, any and all expenses incurred by the Seller and its Affiliates in connection with such Contest after such consent is withheld.
(c) With respect to Straddle Periods, the Seller and the Purchaser shall jointly control any Contest involving any asserted Tax liability. Neither party may settle or compromise any asserted Tax liability with respect to Straddle Periods without prior written consent of the other party; provided, however, that consent to settlement or compromise shall not be unreasonably withheld, delayed or conditioned.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, in the defense against or compromise of any claim in any Contest.
Appears in 1 contract
Contests. (ai) Upon 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 Buyer, any Acquired Company it or any Affiliate thereof of a its Affiliates of written notice of any pending or threatened Tax auditsexamination, examinations, protest proceedings, assessments audit or claims other administrative or judicial proceeding (a “Tax Contest”) that could give rise reasonably be expected to 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 claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (copy of the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, relevant portion of any Indemnifiable Tax Liabilitycorrespondence received from the taxing authority. If Sellers elect the recipient of such notice of a Tax Contest fails to so represent the interests of an Acquired Company or Buyerprovide such timely notice to such other Party, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not entitled to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in indemnification for any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action Taxes arising in connection with such Tax proceedingContest, 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 not settle, compromise or abandon any at its own expense control the defense and settlement of such Tax Proceeding 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 Tax Contest relating to Taxes for which both are liable hereunder, 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 an issue raised in any Tax Contest controlled by one Party or jointly controlled could materially affect the 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 final settlement without obtaining the prior written consent of the Sellersother Party, which consent shall not be unreasonably withheld. Where a Party reasonably withholds its consent to any final settlement, conditioned that Party may continue or delayedinitiate further proceedings, at its own expense, and 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, Buyer shall promptly pay to Seller, upon Seller's written request, an amount equal to the present value of the reduction in Income Taxes payable by the Buyer and its Affiliates in future Tax periods by reason of such reversal, determined by using a discount rate of 6% and an assumed Tax rate of 40%, and by assuming that such reduction in Income Taxes will occur in the year or years of reversal.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mdu Resources Group Inc)
Contests. (a) Upon Buyers agrees to give prompt written notice to Seller of the receipt of any written notice by Buyerthe Company, any Acquired Company Buyers or any Buyer Affiliate thereof of a written notice which involves the assertion of any pending claim, or threatened the commencement of any Action in respect of which an indemnity may be sought by Buyers pursuant to this Article VI or in respect of any Pre-Closing Tax audits, examinations, protest proceedings, assessments Period or claims that could give rise to Straddle Period of the Company (a claim for indemnity under Section 6.03 (an “Indemnifiable Tax LiabilityClaim”), Buyer ; provided that failure to comply with this provision shall promptly give written notice thereof not affect Buyers’ right to Parent (indemnification hereunder except to the “Tax Claim Notice”).
(b) Subject extent that Seller or a Seller Related Party is materially prejudiced by such failure. Seller shall have the right to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, control the compromise contest or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery resolution of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer taxable period ending on or any of their respective affiliates with respect to any Post-before the Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired CompanyDate; provided, however, that (i) Buyer Seller shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining obtain the prior written consent of the Sellers, Buyers (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim if the resolution or settlement of such claim would increase the Tax liability of any Buyer or the Company in a taxable period that ends after the Closing Date, or ceasing to defend such claim; and provided further, that Buyers shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Buyers. Buyers shall have the right to control the contest or resolution of any Tax Claim with respect to any Straddle Period; provided, however, that Buyers shall obtain the prior written consent of Seller (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim if the resolution or settlement of such claim would increase the Tax liability of Seller or any Seller Related Party or result in an indemnification obligation owing by Seller or Seller Related Party to a Buyer Indemnitee pursuant to this Article VI or ceasing to defend such claim; and, provided further, that Seller shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Seller.
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (Endo International PLC)
Contests. (a) Upon After the Closing Date, each of Sellers and the Acquiror shall promptly notify the other party in writing upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of the commencement of any pending Tax audit or threatened Tax auditsadministrative or judicial proceeding or of any demand or claim on a PMSI Indemnitee, examinationsthe Acquiror or the Transferred Subsidiaries or the Belgian Subsidiaries which, protest proceedingsif determined adversely to the taxpayer or after the lapse of time, assessments or claims that could give rise to a claim would be grounds for indemnity indemnification by the other party under Section 6.03 8.7. Such notice shall contain factual information (to the extent known to the notifying party) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Taxing Authority in respect of any such asserted Tax liability. Failure by any indemnitee under Section 8.7 to give any indemnitor under Section 8.7 prompt notice of an “Indemnifiable asserted Tax Liability”), Buyer liability as required by this Section 8.8 shall promptly not affect the indemnification obligation of such indemnitor except to the extent such failure to give written notice thereof results in a actual material detriment to Parent (the “Tax Claim Notice”)indemnitor.
(b) Subject In the case of an audit or administrative or judicial proceeding that relates to Section 6.06(c)a period ending on or before the Closing Date with respect to the Transferred Assets, PMSI and Sellers may elect to controlshall have the sole right, through their Representatives, and at their expense, to control the compromise conduct of such audit or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; 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) In the case of an audit or administrative or judicial proceeding that relates to a period ending on or before the Belgian Closing Date with respect to 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 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 contest relating to taxable periods or portions thereof with respect to 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 material effect on the Taxes of PMSI and the Sellers for taxable periods with respect to the Belgian Subsidiaries beginning before the Belgian Closing Date.
(d) With respect to periods beginning before the Closing Date and ending 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), (i) Buyer shall consult with Sellers before taking each party may participate in an audit or proceeding which relates to any significant action in connection with such Tax proceeding, period and (ii) Buyer such audit or proceeding shall not settle, compromise or abandon be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment; provided that neither party shall settle any such Tax Proceeding audit or proceeding without obtaining the prior written consent of the Sellersother, which consent shall not be unreasonably withheld. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, conditioned or delayedchoice of judicial forum) in situations in which separate issues are otherwise controlled hereunder by the Acquiror, PMSI and the Sellers.
Appears in 1 contract
Sources: Purchase Agreement (Pharmaceutical Marketing Services Inc)
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”)After the Closing, Buyer shall promptly notify Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Buyer or the Company Parties which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article XII. Such notice shall contain factual information (to the extent known to 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 taxing authority in respect of any such asserted Tax liability. If Buyer fails to give written Seller prompt notice thereof of an asserted Tax liability as required by this Section 12.5, then (i) if Seller is precluded by the failure to Parent give prompt notice from contesting the asserted Tax liability in either the administrative or the judicial forum, then Seller shall not have any obligation to indemnify for any Tax or Contest Expense arising out of such asserted Tax liability, and (ii) if Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to Seller, then any amount which Seller is otherwise required to pay Buyer pursuant to Section 12.1 with respect to such liability shall be reduced by the “Tax Claim Notice”)amount of such detriment, if calculable.
(b) Subject Prior to Section 6.06(cthe Closing Date, Seller shall control any audit, claim for refund or administrative or judicial proceeding involving any asserted Tax liability (any such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "Contest"), Sellers may elect to control, through their Representatives, and at their expense, . After the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of SellersClosing Date, in the defense againstcase of a Contest that relates to a Tax Return (or any item relating thereto or reported thereon) for a Taxable period ending on or before the Closing Date, Seller shall at its expense undertake and control the conduct of such Contest, and for all Taxable periods straddling or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of beginning on the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting day after the generality of the foregoingClosing 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 permittedmade to Triarc pursuant to the Tax Indemnity Provisions of the Triarc Purchase Agreement. If 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 Section 12.5(d) if such settlement would adversely affect Seller) after giving ten days" prior written notice to Seller setting forth the terms 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, Buyer shall have the right, at its expense, to be represented at each conference, hearing or meeting with representatives of control the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and Contest but only with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liabilitylatter issues.
(c) Neither Buyer nor Seller shall control, at its own expense, enter into any Tax proceeding for a Straddle Period with respect compromise or agree to settle any claim pursuant to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with Contest which would adversely affect the other party for such Tax proceeding, and (ii) Buyer shall not settle, compromise year or abandon any such Tax Proceeding a subsequent or prior year without obtaining the prior written consent of the Sellersother party, which consent shall may not be unreasonably withheld, conditioned or delayed.
(d) 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 all obligations imposed by the Triarc Purchase Agreement with respect to the Contest of such Third Party Claim.
Appears in 1 contract
Contests. (aA) Upon receipt by Buyer, any Acquired If the Buyer or the Company or any Affiliate thereof of a receives written notice of any pending or threatened audit or other examination by any Governmental Authority, or any judicial or administrative proceedings relating to Taxes (each, a “Tax auditsContest”) that would reasonably be expected to result in Losses that are indemnifiable under this Agreement, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), the Buyer shall promptly give notify the Sellers’ Representative. If the Sellers’ Representative or any Seller receives written notice thereof of a Tax Contest that would reasonably be expected to Parent result in Losses that are indemnifiable under this Agreement, such Party shall promptly notify the Buyer. In each case within this clause (v), the “Tax Claim Notice”)failure or delay in delivering such notice shall not relieve a Party of its obligations hereunder except to the extent that such Party is actually and materially prejudiced by such failure or delay.
(bB) Subject If such Tax Contest relates solely to Section 6.06(cany Past Period, and not to the Straddle Period or any post-Closing period, the Sellers’ Representative shall have the right (but not the obligation), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall be exercised within thirty ten (3010) Business Days following its receipt of delivery 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). For so long as the Sellers’ Representative is conducting and controlling such defense, the Buyer shall have the right, but not the obligation, to participate in such defense with separate counsel of its choosing at its sole cost and expense. None of the Sellers or the Sellers’ Representative shall be permitted to consent to the entry of any judgment or enter into any settlement of such Tax Claim Notice (Context which may adversely impact the Buyer or reasonably sooner, if the nature Company for a post-Closing period or the Tax attributes of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability Company without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall Buyer (not to be unreasonably withheld, conditioned conditioned, or delayed).
(C) Unless and until the Sellers’ Representative assumes the defense of such Tax Contest, the Buyer may defend against such Tax Contest in any manner it may reasonably deem appropriate (with counsel of the Buyer’s choice), in which case the Sellers’ Representative (I) shall cooperate with the Buyer in such defense and make available to the Buyer and its Representatives all witnesses, pertinent records, materials, and information in or under the Sellers’ Representative’s possession or control relating thereto as may be reasonably requested by the Buyer, and (II) shall have the right, but not the obligation, to participate in such 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 be a waiver of the Buyer’s right to indemnification with respect to such Tax Contest.
(D) For the avoidance of doubt, the procedures relating to any Tax Contest shall be governed by this clause (v) and not by Section 7(d)(ii).
Appears in 1 contract
Sources: Stock Purchase Agreement (Travelzoo)
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action Each Member's Stockholder (in connection with such Tax proceedingthe case of PCS, IPLLC, and in the case of Kerman, KCI) and their duly appointed representatives (iicollectively, the "MEMBER REPRESENTATIVE") Buyer shall not settlehave the authority to control any audit or examination by any taxing authority, compromise and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or abandon other adjustment of Taxes of or relating to any such Tax Proceeding liability of a Member for its Member PRE-CLOSING Periods; PROVIDED, HOWEVER, that no Member Representative shall, without obtaining the prior written consent of the SellersUbiquiTel Parent, which consent shall not be unreasonably withheld, conditioned enter into any settlement of any contest or delayedotherwise 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 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 Tax deficiency or other adjustment of Taxes of or relating to any liability of a Member for Taxes for any taxable year or 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 Member Representative's Stockholder Group Indemnitors.
(ii) UbiquiTel Parent agrees to notify in writing the Member Representative of any affected Member within ten business days of receipt of any notice, 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 forward all written notifications and other communications from any Tax authority received by UbiquiTel relating to any Tax audit or other proceeding relating to the Tax liability of or 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 directly or indirectly attributable to any such written notification or other communication, unless such failure materially prejudices the ability of the Member Representative's Stockholder Group to defend or dispute such examination, claim, settlement, adjustment or related matter.
(iii) This Section 11.6(e) shall be subject to the provisions of Article 12 of this Agreement.
Appears in 1 contract
Contests. (a) Upon receipt by BuyerWhenever any Taxing Authority asserts a claim, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (makes an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense againstassessment, or compromise or settlement ofotherwise disputes the amount of Taxes for which Sellers are liable under this Agreement, any claim in any Purchasers shall upon receipt of such proceeding. In that eventassertion, promptly inform Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully have the sole 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 Sellers may be liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Companyunder this Agreement; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceedingthat, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the SellersPurchasers, which consent shall not be unreasonably withheld, conditioned Sellers shall not settle any such claim, assessment or delayeddispute if such settlement would reasonably be 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 any resulting proceedings; (b) that portion of the 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 inform Purchasers of any notice or claim they receive from any Taxing Authority that relates to Taxes for which any of the Spine Entities may be liable and provide Purchasers with a copy of all such claims and notices.
Appears in 1 contract
Contests. (a) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”)After the Closing Date, Buyer shall promptly give written notify Seller in writing of any proposed assessment, the commencement of any audit or court proceedings or of any demand or claim on a Tax Indemnitee which, if determined adversely to the taxpayer or after the lapse of time, would be grounds for indemnification by Seller under Section 10.3 (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 thereof to Parent (the a “Tax Claim NoticeClaim”)) shall contain factual information (to the extent known to Buyer) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability.
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, In the compromise or contest, either administratively or in the courts, case of any Indemnifiable Tax Liability. If Sellers elect Contest that relates to so represent a taxable period ending on or prior to the interests of an Acquired Company or BuyerClosing Date, they Seller shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if have the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperateright, at its expense and through counsel of its own choosing, to control the sole expense conduct of Sellerssuch Contest; provided that (i) Seller does not dispute its obligation to indemnify the Tax Indemnitees for the asserted liability, in (ii) Seller shall consult with the defense against, or compromise or settlement of, Buyer regarding any claim such Contest and shall allow Buyer to participate in any such proceeding. In that eventproceeding 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, Sellers shall reasonably but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments and in good faith consult with Buyer with respect to each aspect the reduction of the defense against, loss or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer credit carryovers) shall be permittedagreed to without Buyer’s prior written consent, at its expense, such consent not to be represented at each conferenceunreasonably withheld or delayed, hearing or meeting with representatives of unless Buyer agrees to indemnify the pertinent taxing authority (and shall be notified reasonably Seller for any increase in advance thereof)Taxes resulting from a failure to provide consent. Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related If Seller elects not to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Companydirect the Contest, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer Company may pay, compromise compromise, or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liabilityasserted liability.
(c) In the case of a Contest that relates to a taxable period beginning before the Closing Date and ending after the Closing Date, Buyer shall controlhave the right, at its expense and through counsel of its own expensechoosing, any Tax proceeding for a Straddle Period with respect to any Acquired Companycontrol the conduct of such Contest; provided, however, provided that (i) Buyer shall consult with Sellers before taking Seller regarding any significant action such Contest and shall allow Seller to participate in connection with any such Tax proceeding, proceeding and (ii) no settlement or other disposition of any claim for Taxes which would adversely affect Seller in such taxable periods or 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 increase in Taxes resulting from a failure to provide consent. Except as provided above, the Buyer shall not settlehave the right to control the conduct of any Contest in its sole discretion with respect to any other Tax matter.
(d) Seller, Buyer and the Company agree to cooperate in the defense against or compromise or abandon of any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayedContest.
Appears in 1 contract
Contests. (a) Upon receipt by BuyerAfter the Closing Date, Purchaser or the Corporation shall notify Seller in writing within twenty (20) Business Days of the commencement of any Acquired Company Tax audit or any Affiliate administrative or judicial proceeding in respect of a taxation period or portion thereof of a written the Corporation ending on or before the Closing Date. Such notice shall contain factual information (to the extent known to Purchaser or the Corporation) describing any asserted liability for Taxes in reasonable detail and shall include copies of any pending notice or threatened Tax audits, examinations, protest proceedings, assessments or claims that could other document received from any Governmental Entity in respect of any such asserted liability for Taxes. The failure to give rise to any notice required by this Section 5.5.3
(a) in a claim for indemnity timely manner shall not limit the obligation of Seller under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof 5.5.1 except to Parent (the “Tax Claim Notice”)extent that Seller is prejudiced by such failure.
(b) Subject Seller may, upon written acknowledgement of the obligation to Section 6.06(c)provide indemnification with respect thereto, Sellers may elect to controldirect, through their Representatives, counsel of its own choosing and at their expensethe expense of Seller, the compromise any audit, claim for refund and administrative or contestjudicial proceeding involving any asserted Tax liability with respect to which indemnity may be sought under Section 5.5.1 (any such audit, either administratively claim for refund or in the courts, of any Indemnifiable proceeding relating to an asserted Tax Liabilityliability is referred to herein as a "Contest"). If Sellers elect Seller elects to so represent the interests of an Acquired Company or Buyerdirect a Contest, they it shall within thirty (30) Business Days calendar days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature receipt of the Indemnifiable Tax Liability so requires) notice of the commencement of a Contest, notify Buyer Purchaser of their its intent to do so, and Buyer Purchaser shall cooperate and shall cause the Corporation or its successor to cooperate, at the sole expense of SellersSeller (which shall not include the cost of the Corporation personnel), in the defense against, or compromise or settlement of, any claim in any each phase of such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayedContest. If Sellers elect Seller elects not to represent direct the interests of an Acquired CompanyContest, Buyer Purchaser or the Corporation may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Companyasserted liability; provided, however, that (i) Buyer shall consult with Sellers before taking in such case, neither Purchaser nor the Corporation may settle or compromise any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding asserted liability without obtaining the prior written consent of the SellersSeller, which consent shall not be unreasonably withheld. In any event, conditioned Seller may participate, at the expense of Seller, in the Contest. If Seller chooses to direct the Contest, Purchaser shall promptly empower and shall cause the Corporation or delayedits successor promptly to empower (by power of attorney and such other documentation as may be appropriate) such representatives of Seller, as it may designate to represent Purchaser or the Corporation or its successor in the Contest in so far as the Contest involves an asserted Tax liability for which Seller would be liable under Section 5.5.1.
(c) If Seller chooses to direct the Contest, Purchaser or the Corporation shall have the right and shall be given the opportunity to consult with Seller with respect to the Contest, to participate in conferences with counsel, to receive copies of all relevant documentation as it becomes available, and to meet with representatives of Seller at all reasonable times to discuss the Contest.
(d) If Seller chooses to direct the Contest, Seller may not settle or compromise the Contest or any asserted liability for Taxes related thereto except with the prior written consent of Purchaser or the Corporation provided if Purchaser or the Corporation withholds its consent to a settlement or compromise of any such Contest or asserted liability for Taxes which Seller is willing to accept liability for and pay the cost of, then Seller shall only be liable to indemnify Purchaser Indemnitees with respect to such Contest or asserted liability for Taxes to the extent that the amount payable on the ultimate disposition thereof is no greater than the amount Seller was willing to accept liability for pursuant to the settlement or compromise in respect of which the consent of Purchaser or the Corporation was withheld.
(e) If Seller elects not to direct the Contest or fails to notify Purchaser of its election as herein provided or fails to acknowledge its indemnification obligation with respect thereto, neither the Purchaser nor the Corporation shall be held responsible for any liability for Taxes or other costs paid or payable by the Seller as a result of any good faith action taken by the Purchaser or the Corporation, or by the failure of the Purchaser or the Corporation to take any action, to settle or compromise the Contest.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Williams Communications Group Inc)
Contests. (ai) Upon Seller on the one hand, and Buyer on the other, shall notify the other in writing within 30 days or such shorter period as may be required thereby of receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax auditsexamination, examinations, protest proceedings, assessments audit or claims other administrative or judicial proceeding (a “Tax Contest”) that could give rise reasonably be expected to result in a claim liability for indemnity Taxes of another party. If the recipient of such notice of a Tax Contest fails to provide such notice to such other party, and the recipient is entitled to indemnification for Taxes under Section 6.03 this Agreement, it shall 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 not 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.
(an “Indemnifiable ii) If a Tax Liability”)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 promptly give written notice thereof to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, control the defense and settlement of such Tax Contest. A party not in control of the defense shall have the right to observe the conduct of any Tax proceeding Contest at its expense, including through its own counsel and other professional experts. If a Tax Contest relates to Taxes for a Straddle Period with respect to any Acquired Company; providedwhich Seller and Buyer may be liable hereunder, however, the parties that (i) Buyer may have such liability shall consult with Sellers before taking any significant action in connection with jointly control the defense and settlement of such Tax proceedingContest.
(iii) To the extent that an issue raised in any Tax Contest controlled by one party or jointly controlled could materially affect the liability for Taxes of another party, the controlling party shall not, and (ii) Buyer shall not settleno party in the case of joint control shall, compromise or abandon any such Tax Proceeding enter into a final settlement without obtaining the prior written consent of the Sellersother party or parties, which consent shall not be unreasonably withheld. Where a party withholds its consent to any final settlement, conditioned that party may continue or delayedinitiate further proceedings, at its own expense, and the liability of the party or parties that wished to settle (as between the consenting and the non consenting parties) 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 or parties shall indemnify the consenting party or parties for such Taxes.
Appears in 1 contract
Contests. (ai) Upon receipt by BuyerAfter the Closing Date, any Acquired Company or any Affiliate thereof Seller and Buyer each shall notify the other party in writing within ten (10) days of a written notice the commencement of any pending Tax audit or threatened Tax auditsadministrative or judicial proceeding affecting the Taxes of any of Panhandle or the Panhandle Subsidiaries that, examinations, protest proceedings, assessments or claims that could give rise if determined adversely to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent the taxpayer (the “"Tax Claim Notice”Indemnified Party") or after the lapse of time would be grounds for indemnification under this Section 5.7 by the other party (the "Tax Indemnifying Party" and a "Tax Claim"). Such notice shall contain factual information describing 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. Failure to give such notification shall not affect the indemnification provided in this Section 5.7 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, the Tax Indemnified Party shall deliver to the Tax Indemnifying Party, as promptly as possible but in no event later than ten (10) days after the Tax Indemnified Party's receipt thereof, copies of all relevant notices and documents (including court papers) received by the Tax Indemnified Party.
(bii) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, In the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests case of an Acquired Company audit or Buyeradministrative or judicial proceeding involving any asserted liability for Taxes relating to any Taxable years or periods ending on or before the Closing Date, they Seller shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if have the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permittedright, at its expense, to be represented at each conferencecontrol the conduct of such audit or proceeding; provided, hearing however, that if Seller does not timely take control of such audit or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Companyproceeding, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall controlmay, at its own expense, control the conduct of the audit or proceeding. In the case of an audit or administrative or judicial proceeding involving any Tax proceeding asserted liability for a Straddle Period with respect Taxes relating to any Acquired CompanyStraddle Period, Buyer shall have the right, at its expense, to control the conduct of such audit or proceeding; provided, however, that (iA) Buyer shall consult keep Seller reasonably informed with Sellers before taking respect to the status of such audit or proceeding and provide Seller with copies of all written correspondence with respect to 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 of Panhandle or the Panhandle Subsidiaries for which Seller would be liable under this Section 5.7 Seller may participate in the conduct of such audit or proceeding at its own expense.
(iii) In the case of an audit or administrative or judicial proceeding involving any significant action asserted liability for Taxes relating to any Taxable years or periods beginning after the Closing Date, Buyer shall have the right, at its expense, to control the conduct of 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 the Tax Indemnifying Party of records and information which are reasonably relevant to such Tax proceeding, Claim and (ii) Buyer shall not settle, compromise or abandon making employees available on a mutually convenient basis to provide additional information and explanation of any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayedmaterial provided hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Panhandle Eastern Pipe Line Co)
Contests. (a) Upon receipt by BuyerIf an audit is commenced, any Acquired Company an adjustment is proposed or any Affiliate thereof of a written notice of other claim is made by any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise Taxing Authority with respect to a claim Tax liability of the Company relating to a tax period or portion thereof ending on or prior to the Closing Date for indemnity which Verizon or Seller reasonably could be liable under Section 6.03 (an “Indemnifiable Tax Liability”4.3.4(b), Buyer shall promptly give written notice thereof notify Seller of such audit or such proposed adjustment or such claim (unless 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) to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representativescontest such claim on audit or by appropriate claim for refund or credit of Taxes or in a related administrative or judicial proceeding, and shall permit Seller, at their its option and expense, to control the compromise or contest, either administratively or in the courts, prosecution and settlement of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company such audit or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (refund claim or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, related administrative or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer judicial proceeding with respect to each aspect those specific matters which could reasonably affect Verizon's Tax liability or the Tax liability of the defense againstSeller, including any liability hereunder, or compromise or settlement oftheir right to payment; and, any such Indemnifiable Tax Liability. Without limiting the generality of where deemed necessary by Seller and in accordance with the foregoing, Buyer shall be permitted, at its expense, cause the relevant entity to be represented at each conference, hearing or meeting with representatives authorize by appropriate powers of the pertinent taxing authority (and attorney such persons as Seller shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related designate to Indemnifiable Tax Liability, and 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 claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect proceeding as it specifically relates to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Companymatters; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with if the results of such Tax proceedingaudit or proceeding could reasonably be expected to have a material adverse effect on the assets, and (ii) business, operations, or financial condition of Buyer for taxable periods ending after the Closing Date, then there shall not settle, compromise be no settlement or abandon any such Tax Proceeding closing or other agreement with respect thereto without obtaining the prior 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 Sellers, which consent provisions of this subsection (e). Any refund of Taxes obtained by Buyer or the affected entity shall not be unreasonably withheld, conditioned paid promptly to Seller in accordance with Section 4.3.4(d) hereof. Buyer shall have the sole right to represent the interests of the Company in all other Tax audits or delayedadministrative or court proceedings.
Appears in 1 contract
Contests. (a) Upon receipt by BuyerAfter the Closing Date, Purchaser shall promptly notify Seller, or Seller, CLAC, or FGWLA shall promptly notify Purchaser, in writing of any Acquired Company or any Affiliate thereof of a written notice of any pending a proposed assessment, audit, examination or threatened claim in a Tax auditsContest of or relating to Purchaser, examinationsSeller, protest proceedingsthe Seller Subsidiaries, assessments the Transferred Assets or claims the Business which, if determined adversely to the taxpayer, would be grounds for indemnification under this Article XII; provided , however , that a failure to give such notice will not affect the rights of a party to indemnification under this Agreement except to the extent, (i) if any, that, but for such failure, the Tax Indemnifying Party could give rise to have avoided all or a claim for indemnity under Section 6.03 portion of the Tax liability in question or (an “Indemnifiable ii) such failure otherwise actually materially prejudices the Tax Liability”), Buyer shall promptly give written notice thereof to Parent (the “Tax Claim Notice”)Indemnifying Party.
(b) Subject In the case of a Tax Contest that (i) relates to taxable periods ending on or before the Closing Date or (ii) relates to a liability for Taxes for which Seller is reasonably likely to indemnify Purchaser or the Seller Subsidiaries pursuant to this Agreement or the Ancillary Agreements, Seller shall have the right at its expense to participate in, control the conduct of, and, subject to Purchaser’s consent pursuant to Section 6.06(c12.04(c), Sellers may elect settle such Tax Contest. Purchaser shall control all other Tax Contests and have the right to control, through their Representatives, and at their expense, the compromise or contest, either administratively or participate in the courts, of any Indemnifiable all Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty Contests (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer including with respect to each aspect of which Seller possesses the defense against, or compromise or settlement ofright to control) which are reasonably likely to result in an adverse material effect to Purchaser, any such Indemnifiable Tax Liability. Without limiting Affiliate of Purchaser or the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax LiabilitySeller Subsidiaries.
(c) Buyer None of Purchaser, the Seller Subsidiaries or any Affiliate of either, nor Seller or any Affiliate of Seller, shall control, at its own expense, enter into any compromise or agree to settle any claim pursuant to any Tax proceeding Contest which would adversely affect the other party for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding year without obtaining the prior written consent of the Sellersother party, which consent shall may not be unreasonably withheld, conditioned or delayed. Purchaser and Seller agree to reasonably cooperate, and Purchaser agrees to cause the Seller Subsidiaries to reasonably cooperate, in the defense against or compromise of any Tax Contest.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Great West Life & Annuity Insurance Co)
Contests. (a) Upon receipt If an audit is commenced, an adjustment is proposed or any other claim is made by Buyer, any Acquired Taxing Authority with respect to a Tax liability of the Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise the Subsidiary relating to a claim Pre-Closing Tax Period for indemnity which the Seller could be liable under Section 6.03 (an “Indemnifiable Tax Liability”)Article XII, Buyer shall promptly give written notice thereof 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 (Buyer, the Company or the Subsidiary, or any of their respective successors) to Parent (the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representativescontest such claim on audit or by appropriate claim for refund or credit of Taxes or in a related administrative or judicial proceeding, and shall permit the Seller, at their its option and expense, to control the compromise or contest, either administratively or in the courts, prosecution and settlement of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company such audit or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (refund claim or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, related administrative or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer judicial proceeding but only with respect to each aspect those specific matters that could reasonably affect the Tax liability of the defense againstSeller, including any liability hereunder, or compromise or settlement oftheir right to payment; and, any such Indemnifiable Tax Liability. Without limiting where reasonably deemed necessary by the generality of Seller and in accordance with the foregoing, Buyer shall be permitted, at its expense, cause the relevant entity to be represented at each conference, hearing or meeting with representatives authorize by appropriate powers of attorney such persons as the pertinent taxing authority (and Seller shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related designate to Indemnifiable Tax Liability, and 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 claim that could adversely affect an Acquired Companyproceeding but only as it specifically relates to such matters for which Seller confirms in writing its sole liability 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 participate therein, at Buyer's expense. Buyer shall further execute and deliver, or cause to be 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 any of their respective affiliates with respect the affected entity pursuant to any Post-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 Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not extent payable to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretionSeller under Section 8.8(b), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Contests. (a) Upon receipt by BuyerIn the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date or for which Purchaser may seek indemnity from Sellers, the Sellers shall have the right 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 any Acquired Company or Seller has acknowledged liability and the issue underlying the potential adjustment does not recur for any Affiliate thereof period ending subsequent to the Closing Date. Sellers shall keep Purchaser fully informed of a written notice the progress of any pending such audit or threatened Tax auditsproceeding and, examinationsif it appears in the sole discretion of the Purchaser, protest proceedings, assessments that such audit or claims that could give rise proceeding may reasonably be expected to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”), Buyer shall promptly give written notice thereof to Parent (adversely affect the “Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expensePurchaser or KC Machine, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim Purchaser also may participate in any such audit or proceeding. In that event, If the Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of do not assume the defense against, or compromise or settlement of, of any such Indemnifiable Tax Liabilityaudit or proceeding promptly, the Purchaser may defend and settle the same (for the Sellers’ account and at Sellers’ expense) in such manner as it may deem appropriate. Without limiting In the generality of event that a potential adjustment as to which the foregoingSellers would be liable is present in the same proceeding as a potential adjustment for which the Purchaser would be liable, Buyer the Purchaser shall be permittedhave the right, at its expense, to be represented at each conference, hearing control the audit or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and proceeding with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with the latter potential adjustment.
(b) With respect to a potential adjustment for which any Post-Seller and the Purchaser or KC Machine could be liable, or which involves an issue that recurs for any period ending after the Closing Date (whether or not the subject of audit at such time),
(i) both the Purchaser and the Sellers may participate in the audit or proceeding, each at its own expense, and
(ii) 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 Period, Sellers periods. The principle set forth in the preceding sentence shall not settle, compromise or abandon govern also for purposes of deciding any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not issue that must be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate decided jointly (in its sole discretion)particular, choice of judicial forum) in circumstances in which separate issues are otherwise controlled hereunder by the Purchaser and Sellers shall remain fully liable for such Indemnifiable Tax Liabilitythe Sellers.
(c) Buyer Except as provided in clause (a) above, neither the Purchaser nor the Sellers shall control, at its own expense, enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party, or result in a material benefit to that party, for such year or a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding subsequent year without obtaining the prior written consent of the Sellersother party, which consent shall may not be unreasonably withheld, conditioned withheld or delayed.
Appears in 1 contract
Sources: Company Purchase Agreement (T-3 Energy Services Inc)
Contests. (ai) Upon receipt by Buyer, any Acquired Company or any Affiliate thereof of a written notice of any pending or threatened Tax audits, examinations, protest proceedings, assessments or claims that could give rise to a claim for indemnity under Section 6.03 (an “Indemnifiable Tax Liability”)After the Closing, Buyer shall promptly give notify Seller in writing of (x) any correspondence from any Tax authority relating to any Tax Return filed by Seller pursuant to Section 6.11(b)(i) or by Buyer pursuant to Section 6.11(b)(ii) and (y) any written notice thereof to Parent of a proposed assessment or claim in an audit or administrative or judicial proceeding involving Company or any of its Subsidiaries (the clauses (x) and (y) together, a “Tax Claim NoticeContest”) which, if determined adversely to the taxpayer, would be grounds for indemnification by Seller (including any payment under Section 6.11(c)).
(bii) Subject In the case of a Tax Contest that relates to Section 6.06(c)a Pre-Closing Period, Sellers may elect Seller shall have the right at its expense to control, through their Representatives, and at their expense, control the compromise or contest, either administratively or in conduct of such Tax Contest; provided that (x) Seller shall indemnify the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days any of delivery its Subsidiaries in respect of any Tax Claim Notice (all third-party costs and expenses incurred by such Company or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that eventSubsidiary at Seller’s request in connection with such Tax Contest, Sellers (y) Seller shall reasonably and in good faith consult with keep Buyer with respect to each aspect informed of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Buyer shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority all material progress (and shall be notified reasonably in advance thereof). Sellers send Buyer copies of all material correspondence relating thereto) of the Tax Contest and (z) Seller shall promptly notify Buyer in writing after it settles, compromises not enter into any compromise or abandons agree to settle any claim of matters related pursuant to Indemnifiable such Tax Liability, and Contest with respect to any such claim issue that could adversely affect an Acquired Company, Buyer recurs for any Straddle Period or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise Period or abandon any matter related item resulting in a reciprocal adjustment to Indemnifiable Tax Liability any Straddle Period or Post-Closing Period without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed). Buyer also may participate at its own expense in any such Tax Contest and, if Seller does not notify Buyer in writing within 30 days of receiving notice of such Tax Contest pursuant to Section 6.11(f)(i) hereof of its intent to assume the defense of such Tax Contest, Buyer may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such Tax Contest after giving five days’ prior written notice to Seller setting forth the terms and conditions of settlement.
(iii) In the case of a Tax Contest that relates to a Straddle Period, (x) each of Seller and Buyer may participate in the Tax Contest, and (y) the Tax Contest shall be controlled by that party which would bear the burden of the greater portion of the adjustment (the “Controlling Party”); provided that (a) the Controlling Party shall indemnify the Company or any Subsidiary in respect of all third-party costs and expenses incurred by the Company or any such Subsidiary at the Controlling Party’s request in connection with such Tax Contest, (b) the Controlling Party shall keep the other party informed of all material progress (and shall send such party copies of all material correspondence relating thereto) of the Tax Contest and (c) if Seller is the Controlling Party, Seller shall not enter into any compromise or agree to settle any claim pursuant to such Tax Contest with respect to any issue that recurs for any Straddle Period or Post-Closing Period or any item resulting in a reciprocal adjustment to any Straddle Period or Post-Closing Period without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed). The principle set forth in clause (y) of the preceding sentence also shall govern for purposes of deciding any issue that must be decided
(iv) In the case of a Tax Contest that relates to a Post-Closing Period, Buyer shall have the right at its expense to control the conduct of such Tax Contest.
(v) Except as provided in paragraph (ii) above, neither Buyer nor Seller shall enter into any compromise or agree to settle any claim pursuant to any Tax Contest which would adversely affect the other party for such year or a subsequent year, or which would result in a payment under Section 6.11(d), without the written consent of the other party, which consent may not be unreasonably withheld. Buyer and Seller agree to cooperate, and Buyer agrees to cause the Company and any of its Subsidiaries to cooperate, in the defense against or compromise of any claim in any Tax Contest.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Crown Media Holdings Inc)