Contests. (a) After 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 Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller. (b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control. (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 2 contracts
Sources: Merger Agreement, Merger Agreement (PNA Group Holding CORP)
Contests. (ai) After Seller on the Merger Effective Timeone hand, and Buyer or Parent on the Purchaser other, shall promptly notify the Seller other in writing within 30 days or such shorter period as may be required thereby of the proposed assessment or the commencement receipt of written notice of any pending or threatened Tax examination, audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “"Tax Contest”") that could reasonably be expected to result in a liability for 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 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.
(ii) If a Tax Contest relates to taxable periods ending on 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 or before Parent is liable in full hereunder, Buyer or Parent shall at its own expense, control the date defense and settlement of such Tax Contest. A party not in control of the Merger, the Seller defense shall have the sole right, right to observe the conduct of any Tax Contest at its expense, including through its own counsel and other professional experts. If a Tax Contest relates to direct Taxes for which Seller and either Buyer or Parent or both may be liable hereunder, the parties that may have such liability shall jointly control the conduct of, or pursue or settle, defense and settlement of such Tax Contest.
(ciii) With respect to Straddle PeriodsTo 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 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 Seller elects to direct a Contest, the Seller controlling party shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do sonot, and no party in the Purchaser shall cooperate and shall cause the Companycase of joint control shall, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period final settlement without the written consent of the other partyparty or parties, which consent may shall not be unreasonably withheld. In Where a party withholds its consent to any such Contestfinal settlement, the costs and expenses of the that party assuming control of such Contest shall be paid first from any recovery before any payments are made to either party. The Purchaser may participatecontinue or initiate further proceedings, at its own expense, in any Contest in which and the Seller assumes controlliability 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 Seller may participate, at its own expense, in any Contest in which non consenting party or parties shall indemnify the Purchaser assumes controlconsenting party or parties for such Taxes.
(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 2 contracts
Sources: Asset Purchase Agreement (Headwaters Inc), Asset Purchase Agreement (Headwaters Inc)
Contests. (a) After the Merger Effective TimeClosing Date, the Purchaser Buyer shall promptly notify the Seller or Seller shall promptly notify Buyer in writing of the any written notice of a proposed assessment or claim in a Tax Contest of or relating to Buyer, Seller 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 Subsidiary or any Joint Venture Transferred Companies which, if determined adversely to the taxpayer or after the lapse of timetaxpayer, could would be grounds for indemnification by under this Article X; provided, however, that a failure to give such notice will not affect the Seller rights of a party to indemnification under Section 7.01. Such notice shall contain factual information (this Agreement except to the extent known to the Purchaserextent, its Affiliatesif any, 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to materially prejudices the Sellerother party.
(b) In the case of a Tax audit or administrative or judicial proceeding Contest that (a “Contest”i) that relates to taxable periods ending on or before the date of Closing Date or (ii) relates to a liability for Taxes for which Seller could have to indemnify Buyer or the MergerTransferred Companies pursuant to this Agreement, the Seller shall have the sole right, at its expense, right to direct and control the conduct ofof such Tax Contest; provided that Buyer shall have the right to participate in 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 pursue (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 Contest. 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) With respect In the case of a Tax Contest that is reasonably likely to Straddle Periodsresult 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 (iv) the Controlling Party shall inform 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 Seller may elect to direct and control, through counsel Transferred Companies or any Affiliate 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do soforegoing, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the nor Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control Affiliate of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which any Tax Contest that would adversely affect the other party for such taxable period or a subsequent taxable period any year without the written consent of the other party, which consent may not be unreasonably withheldwithheld or delayed. In any such Contest, the costs Buyer 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser Buyer agrees to cause the Company and the Subsidiaries Transferred Companies to cooperate, in the defense against or compromise of any claim in any Tax Contest.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Fidelity & Guaranty Life), Stock Purchase Agreement (Harbinger Group Inc.)
Contests. (a) After the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing upon receipt by Purchaser or the Subject Company of notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments which may materially affect the tax liabilities of the proposed assessment or Subject Company for which Seller would be required to indemnify Purchaser pursuant to Section 5.4(a). Seller shall have the commencement of sole right to represent the Subject Company's interests in any Tax tax audit or administrative or judicial court proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates relating to taxable periods ending on or before the date of the MergerClosing Date, the Seller shall have the sole right, at its expense, and 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 employ counsel of its choice at its own choosingexpense. Seller shall not be entitled to settle, either administratively or after the commencement of litigation, 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which for Taxes that would materially adversely affect the other party liability for such taxable Taxes of Purchaser or the Subject Company for any period or a subsequent taxable period after the Closing Date without the prior written consent of the other party, which Purchaser; provided that such consent may shall not be unreasonably withheld. In withheld or delayed and shall not be necessary to the extent that Seller has indemnified Purchaser against the effect of any such Contest, the costs and expenses of the party assuming control of such Contest settlement. Seller shall be paid first from any recovery before any payments are made entitled to either party. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(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 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 ContestTax claim for the portion of the year or period ending prior to or on the Closing Date which may be the subject of indemnification by Seller under Section 5.4(a) without the prior written consent of Seller; provided that such consent shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Lady Luck Gaming Corp), Stock Purchase Agreement (Sodak Gaming 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”) After shall be delivered, sent, commenced, or initiated to, by or against Purchaser or any of the Merger Effective TimeCompanies by any taxing authority with respect to Taxes that results in or may result in a Tax Loss for which indemnification may be claimed from Sellers under this Agreement, the Purchaser shall promptly notify the Seller Sellers in writing of such Tax Contest; provided that 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 Subsidiary or any Joint Venture which, if determined adversely failure to the taxpayer or after the lapse of 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, so notify Sellers shall not limit the obligation relieve Sellers of the Seller to indemnify the Purchasertheir indemnification obligations hereunder, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only except to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date prejudices Sellers’ defense of the Merger, the Seller Tax Contest. Sellers shall have the sole right, at its expense, right to direct represent the Companies’ interests 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 employ counsel of its own choosing, any Contest involving any asserted Tax Liability their choice at their expense with respect to any such 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 indemnity may be sought from the Seller such party bears liability pursuant to Section 7.019.1. If the Seller elects to direct No party may settle or otherwise dispose of any Tax Contest for which another party may have a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary liability under Section 9.1 or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would settlement could adversely affect the other either party in Tax periods for which such taxable period party is responsible or for which another party may be entitled to a subsequent taxable period refund or credit under Section 9.1 without the prior written consent of the such other party, which consent may will not be unreasonably withheld, conditioned or delayed. In any such Contest, the costs and expenses of the party assuming event that Sellers do not take control of such a Tax Contest shall be paid first from any recovery before any payments are made that they have the right to either party. The Purchaser may participatecontrol hereunder, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree Companies shall keep Sellers reasonably informed as to cooperatethe progress of such Tax Contest and shall not enter into any settlement or other disposition of the such Tax Contest prior to receiving the written consent of Sellers, and which consent will not be unreasonably withheld, conditioned or delayed. In no event, without the prior written consent of PLC, which shall not be unreasonably withheld, conditioned or delayed, shall Purchaser agrees to cause or the Company and the Subsidiaries to cooperate, in the defense against or compromise Companies grant an extension of any claim applicable statute of limitations in respect of any ContestTax 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. (a) After the Merger Effective TimeClosing, the Purchaser shall promptly notify the Seller Sellers Representative 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, or the Company, any Subsidiary Company or any Joint Venture Company Subsidiary which, if determined adversely to the taxpayer or after the lapse of time, could result in any Tax liability for the Sellers or be grounds for indemnification by the Seller Sellers under Section 7.01ARTICLE IX. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, or the Company, any Subsidiary or any Joint Venture) describing the asserted Tax Liability 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 Liabilityliability. Any failure by the If Purchaser fails to give the Seller Sellers Representative prompt notice of an asserted Tax Liability liability as required by this Section 7.03, then the Sellers shall not limit the have any obligation of the Seller to indemnify the Purchaserfor any loss arising out of such asserted Tax liability, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and but only to the extent that failure to give such failure resulted notice results in an economic a detriment to the SellerSellers.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Mergera Pre-Closing Tax Period, the Seller Purchaser shall have the sole right, right (at its Seller’s expense, ) to direct and control the conduct of, or pursue or settle, of such Contest. Purchaser shall notify Sellers Representative of any Contest, and shall keep 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 any asserted liability that Sellers may be obligated to indemnify without prior written consent of the Sellers Representative; provided, however, that consent to settlement or compromise shall not be unreasonably withheld.
(c) With respect to Straddle Periods, the Seller may elect to Purchaser shall direct and control, through counsel of its own choosing, any Contest involving any asserted Tax Liability liability. If the asserted Tax liability is one with respect to which indemnity may be sought from the Seller Sellers pursuant to Section 7.01. If the Seller elects to direct a ContestARTICLE IX, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest Sellers Representative may participate (at the Purchaser’s Sellers’ expense). The Seller shall fully cooperate ) in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, and neither Purchaser nor the Seller, on the other hand, shall enter into Company may settle or compromise any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period asserted liability without the prior written consent of the other partySellers Representative, which consent may shall not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser Purchaser, the Sellers Representative and the Seller Sellers agree to cooperate, and the Purchaser agrees to cause the Company and the Company Subsidiaries to cooperate, in the defense against or compromise of any claim in any Contest.
Appears in 2 contracts
Sources: Stock Purchase Agreement (PAE Inc), Stock Purchase Agreement (PAE Inc)
Contests. (a) After the Merger Effective Time, the Purchaser shall promptly The Buyer will notify the Seller Representative in writing of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding Proceeding or of any demand or claim Claim on the Purchaser, Buyer and its Affiliates, Affiliates or the Company, any Subsidiary or any Joint Venture whichSeller that, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.018.1, 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. Such The Buyer’s notice shall will contain factual information (to the extent known to the Purchaser, Buyer and its Affiliates, the Company, any Subsidiary or any Joint Venture) briefly describing the asserted Tax Liability in reasonable detail liability and shall will include copies of any notice or other document received from any taxing authority 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Sellerliability.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, the The Seller shall Representative will have the sole right, at its expense, to direct and control the conduct of, a Tax audit or pursue administrative or settlejudicial Proceeding (a “Contest”) that relates to Taxable Periods ending before the Closing Date; provided that, if any such ContestProceeding would result in an adjustment to Tax that would have an adverse effect on the Buyer or any of its Affiliates for a period ending after the Closing Date, the Seller Representative (i) will permit the Buyer to participate in the Proceeding, and (ii) will not settle or otherwise compromise the Proceeding without the Buyer’s prior written consent, which consent will not be unreasonably withheld.
(c) With respect to Straddle Periods, the The Seller Representative may elect to direct and controlparticipate, through counsel of at its own choosingexpense, in any Contest involving any asserted Tax Liability liability for Straddle Period Taxes 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 Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control8.1.
(d) The Purchaser Buyer will not take any position or agree to any settlement in a Contest that would result in liability of the Seller or an indemnity Claim by the Buyer or the Buyer Sub against the Seller without the Seller Representative’s prior written consent, which consent will not be unreasonably withheld, except 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 agree to cooperateRepresentative will pay the other one-half, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, except as provided in the defense against or compromise of any claim in any ContestSection 8.5(d)(vi).
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Avon Products Inc)
Contests. (a) After the Merger Effective TimeUpon receipt by Buyer, the Purchaser 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 notify give written notice thereof to Parent (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 Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the SellerClaim Notice”).
(b) In Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the case compromise or contest, either administratively or in the courts, of a any Indemnifiable Tax audit Liability. If Sellers elect to so represent the interests of an Acquired Company or administrative Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before reasonably sooner, if the date nature of the MergerIndemnifiable Tax Liability so requires) notify Buyer of their intent to do so, the Seller and Buyer shall have cooperate, at the sole rightexpense 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 direct be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and control the conduct ofshall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or pursue 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 ContestIndemnifiable 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) With respect to Straddle Periods, the Seller may elect to direct and Buyer shall 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may 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 in any Contest in which the Seller assumes controlconnection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the Seller may participateprior written consent of the Sellers, at its own expensewhich consent shall not be unreasonably withheld, in any Contest in which the Purchaser assumes controlconditioned or delayed.
(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 2 contracts
Sources: Securities and Asset Purchase Agreement (Easylink Services International Corp), Securities and Asset Purchase Agreement (Premiere Global Services, Inc.)
Contests. (a) After the Merger Effective TimeClosing, the Purchaser party first receiving notice shall promptly notify the Seller other party 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, first party from any Tax authority or other party with respect to Taxes for which the Company, any Subsidiary or any Joint Venture which, if determined adversely other party is liable pursuant to the taxpayer or after the lapse of 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 Ventureknown) describing the asserted Tax Liability liability in reasonable detail and shall include copies of any notice or other document received from any taxing Tax authority in respect of any such asserted Tax Liabilityliability. Any failure by the Purchaser If such notifying party fails to give the Seller other party prompt notice of an asserted Tax Liability liability as required by this Section 7.03, then (a) if the other party is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then such notifying party shall not limit the obligation of the Seller to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture have sole responsibility for such Tax Liability unless and only to liability or (b) if the extent that other party is not precluded from contesting but such failure resulted to give prompt notice results in an economic detriment to the Sellerother party, then any amount that the other party is otherwise required to pay to such notifying party pursuant to Section 7.01 with respect to such liability shall be reduced by the amount of such detriment.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 The Seller may elect to direct and controlcontrol the conduct to a final determination, through counsel of its own choosingchoosing and at its own expense, of any Contest audit, claim for refund and administrative or judicial proceeding involving any asserted Tax Liability liability with respect to which indemnity may be sought from by the Seller pursuant Purchaser under Section 7.01(a) (any such audit, claim for refund or proceeding relating to Section 7.01an asserted Tax liability is referred to herein as a "CONTEST"). If the Seller elects to direct control a Contest, the Seller it shall within thirty (30) 30 calendar days of receipt of the notice of asserted Tax Liability liability notify the Purchaser in writing of its intent to do so. In such case, thereafter the Seller shall have all rights to settle, compromise and/or concede such asserted liability and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures a Publishing Subsidiary or any of its successors to fully cooperate, at the expense of the Seller’s expense, in each phase of such Contest; PROVIDED, HOWEVER, that (i) Seller shall not, other than in good faith based on the merits, enter into any compromise or settlement of such Contest that would result in any Tax detriment to the Purchaser, the Parent or any Publishing Subsidiary; and (ii) if a Publishing Subsidiary is requested by the Seller to pay or cause to be paid the tax claimed and to ▇▇▇ for a refund, then the Seller shall advance to the Publishing Subsidiary on an interest-free basis the amount of Tax claimed. The Seller shall inform the Purchaser of all developments and events relating to such Contest (including, without limitation, providing to the Purchaser copies of all written materials relating to such contest reasonably requested by Purchaser), and the Purchaser and its authorized representatives shall be entitled, at the expense of the Purchaser, to attend, but not participate in or control, all conferences, meetings and proceedings relating to such Contest. If, pursuant to Section 7.03(b)(ii), the Seller advances to a Publishing Subsidiary an 50 amount of Tax claimed under a Contest and there is a final determination that the Publishing Subsidiary is entitled to a refund of all or any portion thereof, then the Publishing Subsidiary shall promptly pay or cause to be paid to Seller such refund upon its receipt thereof (together with any interest paid or credited thereon by the applicable Tax authority). If the Seller elects not to direct control the Contest, the Seller shall promptly fails to notify the Purchaser and the Purchaserof its election as herein provided or contests its obligation to indemnify under Section 7.01(a), the CompanyPurchaser or a Publishing Subsidiary may pay, any Subsidiary compromise or any Joint Venture shall assume control of contest such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contestasserted liability. Neither the Purchaser, Purchaser nor any Publishing Subsidiary may settle or compromise any asserted liability with respect to which indemnity may be sought by the Company, any Subsidiary or any Joint Venture, on Purchaser over the one hand, nor objection of the Seller; PROVIDED, on the other handHOWEVER, that consent to settlement or compromise shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contestevent, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Contest. If the Seller chooses to control the Contest, the Purchaser assumes control.
shall promptly empower and shall cause a Publishing Subsidiary or any of its successors promptly to empower (dby power of attorney and such other documentation as may be appropriate) The Purchaser and such representatives of the Seller agree as it may designate to cooperaterepresent the Purchaser, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, a Publishing Subsidiary or any of their successors in the defense against or compromise of any claim in any ContestContest insofar as the Contest involves an asserted Tax liability with respect to which indemnity may be sought by the Purchaser.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Pearson PLC), Stock Purchase Agreement (Viacom Inc)
Contests. (a) After the Merger Effective TimeClosing Date, the Purchaser Buyers shall promptly notify the Seller Sellers in writing within ten (10) days of the receiving notice of a proposed assessment or the commencement of any 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 Related Person of such party) briefly describing the asserted Tax liability and shall include copies of any notice or other document received from any Taxing Authority in respect of any such asserted Tax liability. The failure of Buyers to provide Sellers such notice shall not release Sellers from their obligations under this Agreement except to the extent Sellers have been materially prejudiced by the failure to receive such notice.
(b) Except as provided below, in the case of a Tax audit or administrative or judicial Proceeding (a “Contest”) that relates to 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 shall have the right, 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 Buyers, individually or in the aggregate, shall not settle or otherwise compromise such Proceeding without the prior written consent of Buyers (which consent shall not be unreasonably withheld, delayed or conditioned). 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 Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely Cinemex Companies corresponding to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.01. Such notice shall contain factual information a taxable period that (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint VentureA) 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending ends on or before the date of Closing Date or (B) is allocable to the Merger, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase portion of such Contest. If Straddle Period ending on and including the Seller elects not to direct the ContestClosing Date, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the costs and expenses of the party assuming control of such Contest x) shall be paid first from any recovery before any payments are made by Sellers to either party. The Purchaser may participateBuyers 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 its own expense, the direction of Buyers to Sellers if the Tax adjustment results in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controla credit or refund of Taxes.
(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 2 contracts
Sources: Stock Purchase Agreement (Amc Entertainment Inc), Stock Purchase Agreement (Marquee Holdings Inc.)
Contests. (ai) After the Merger Effective Time, the Purchaser Buyer and Seller shall promptly notify the Seller other Party in writing upon receipt of the proposed written notice of any pending or threatened audit, notice of deficiency, examination, assessment or the commencement of any other administrative proceeding or court proceedings (“Audit”) which may affect any Tax audit or administrative or judicial proceeding or of any demand or claim on liability for which the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely other Party is liable pursuant to the taxpayer or after the lapse of 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller5.12.
(bii) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) any Audit that relates solely to taxable periods ending on or before Taxes for which Seller is liable under Section 5.12(a), Seller shall, at its option, have the date sole right to (A) represent the interests of the MergerAcquired Companies in such Audit; (B) employ counsel of its choice in connection therewith; and (C) settle such Audit; provided, however, if settlement or compromise of such Audit reasonably could be expected to adversely affect Buyer or the Acquired Companies, then Seller shall not settle or compromise any asserted Tax liability without the prior written consent of Buyer (such consent not to be unreasonably withheld, delayed or conditioned).
(iii) Buyer shall have the sole rightright to (A) control all other Audits, at its expense, to direct and control the conduct of, or pursue or settle, such Contest.
including all Audits involving any Post-Closing Tax Period (cincluding any Straddle Period); (B) With respect to Straddle Periods, the Seller may elect to direct and control, through employ counsel of its own choosingchoice; and (C) settle such Audit; provided, however, that Buyer shall afford Seller the opportunity to participate, as may reasonably be requested by Seller, with Buyer in contesting any Contest involving Tax claim solely to the extent such Tax claim relates to Taxes that would give rise to a Seller indemnity obligation hereunder; and provided further that Buyer may not settle or compromise any asserted Tax Liability with respect liability that would give rise to which a Seller indemnity may be sought from the Seller pursuant to Section 7.01. If the Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period obligation hereunder without the prior written consent of the other party, which Seller (such consent may not to be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controldelayed 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 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (API Technologies Corp.)
Contests. (a) After 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 Subsidiary or any Joint Venture 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. 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 Whenever any taxing authority in respect of any such asserted Tax Liability. Any failure by the Purchaser to give the Seller prompt provides notice of an asserted inquiry, audit, examination, proceeding or makes a written assertion of a claim for or dispute regarding, or assessment of, Taxes (a "Tax Liability as Claim") for which Seller is liable or required by to provide indemnification under this Section 7.03Agreement, 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 limit relieve Seller of its obligation to provide the obligation of the Seller indemnity required hereunder as to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only Claim except to the extent that such failure resulted in an economic detriment has materially prejudiced Seller's ability to the Seller.
(b) In the case of a defend such Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, the Claim. Seller shall have the sole rightright to control any resulting inquiry, at its expenseaudit, examination or proceedings and to direct determine whether 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or agree when to settle any claim pursuant resulting claim, assessment or dispute to the extent such audit inquiry, audit, examination, proceedings or proceeding which would adversely determinations affect the other party amount of Taxes for which Seller is liable or required to provide indemnification under this Agreement (including those attributable to the Straddle Period); provided, however, that (A) Seller shall have acknowledged that it is liable to the Purchaser Indemnified Parties for such taxable period Taxes under Section 6.6(b) (or a subsequent taxable period without the written consent applicable portion of the other party, which consent may not be unreasonably withheld. In any Taxes for such Contest, the 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. The Purchaser may participate, at its own expenseperiod, in any Contest the case of Taxes attributable to the Straddle Period); (B) Seller shall conduct such proceedings in which the Seller assumes controla commercially reasonable manner; (C) Purchaser, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries may participate in such proceedings at their own expense; (D) Seller shall not compromise or settle, or agree to cooperatecompromise or settle, any Tax Claim without Purchaser's consent (which shall not be unreasonably 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 defense against 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 of any claim in any Contestor 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) After Buyer Parties and the Merger Effective Time, the Purchaser Companies shall promptly notify the Seller in writing forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the proposed assessment Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the commencement 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 Tax audit or administrative Damage directly or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely indirectly related to the taxpayer or after the lapse subject matter of 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 such written notification 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 Subsidiary or any Joint Venture for such Tax Liability unless and only communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such failure resulted in an economic detriment to the Sellerwritten notice.
(b) In (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the case of a Tax Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or judicial proceeding other adjustment of Taxes of the Companies (each, a “ContestTax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that relates Stockholder Representative shall provide to taxable periods ending on or before the date of the Merger, the Seller shall have the sole right, Buyer Parties (at its Buyer Parties’ expense, which expense shall not be subject to direct and control indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the conduct Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or pursue or settle, such Contest.
(c) With respect to Straddle Periods, the Seller may elect to direct and control, through counsel of its own choosingotherwise compromise, any Contest involving such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any asserted Tax Liability with respect Taxes, as to which indemnity may the Stockholders would not be sought from liable hereunder, without the Seller prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to Section 7.01. If the Seller elects to direct a Contestpreceding sentence, the Seller shall Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of receipt 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 asserted Tax Liability notify the Purchaser 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 its intent to do so, and the Purchaser shall cooperate and shall cause the Companysuch notice, the Subsidiaries disputed items shall be resolved by the Dispute Advisor and any determination by the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller Dispute Advisor shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense)be final. The Seller Dispute Advisor shall fully cooperate in each phase resolve any disputed items within ten (10) days of such Contest. Neither having the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or agree item referred to settle any claim it pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other partyprocedures as it may require. The costs, which consent may not be unreasonably withheld. In any such Contest, the costs fees and expenses of the party assuming control of such Contest Dispute Advisor shall be paid first from any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, borne equally by Buyer Parties and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlStockholder Representative.
(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 2 contracts
Sources: Merger Agreement (Vici Properties Inc.), Merger Agreement (Penn National Gaming Inc)
Contests. (a) After the Merger Effective TimeClosing, 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 Subsidiary Affiliates or any Joint Venture 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 7.017.01 (a “Claim”). Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary Affiliates or any Joint Venture▇▇▇▇▇▇ Entity) describing the asserted Tax Liability Claim 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 LiabilityClaim. Any failure by If the Purchaser fails to give the Seller prompt notice of an asserted Tax Liability a Claim as required by this Section 7.03, then the Seller shall not limit the have any obligation of the Seller to indemnify the Purchaserfor any Loss arising out of such Claim, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and but only to the extent that failure to give such failure resulted notice results in an economic a detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the MergerClosing Date, the Seller shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, of such Contest.
(c) 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 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 Seller shall within thirty (30) 60 days of receipt of the notice of asserted Tax Liability liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures ▇▇▇▇▇▇ Entities to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall ▇▇▇▇▇▇ Entity may assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate However, in each phase such case, none of such Contest. Neither the Purchaser, the Company, any Subsidiary Purchaser or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into ▇▇▇▇▇▇ Entity may settle or compromise any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period asserted liability without the prior written consent of the other partySeller; provided, which however, that consent may to settlement or compromise shall not be unreasonably delayed or withheld. In any such Contestevent, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlContest.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries ▇▇▇▇▇▇ Entities to cooperate, in the defense against or compromise of any claim in any Claim or Contest.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dow Chemical Co /De/), Stock Purchase Agreement (Rohm & Haas Co)
Contests. If an audit is commenced or any other claim is made by any Tax authority with respect to a Tax liability of the Company or any of its Subsidiaries for which Verizon, GTE or Seller could be liable under Section 5.3(b) (a) After the Merger Effective Timea "TAX CONTEST"), the Purchaser Buyer shall promptly notify the Seller of such Tax Contest (unless Verizon, GTE or Seller previously was notified in writing of directly by the proposed assessment or relevant Tax authority). If Seller so requests in writing and at Seller's expense, Buyer (1) shall cause the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliatesrelevant entity (Buyer, the Company, any Subsidiary or any Joint Venture which, if determined adversely successor) to the taxpayer or after the lapse of 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 Subsidiary or any Joint Venture for contest such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax 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 direct such entity to pursue, and (a “Contest”2) that relates to taxable periods ending on or before the date of the Merger, the Seller shall have the sole rightpermit Seller, at its expense, to direct and control the conduct of, prosecution and settlement of any such audit or pursue refund claim or settle, such Contest.
(c) 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 related administrative or judicial proceeding with respect to which indemnity may be sought from the Seller pursuant to Section 7.01. If the Seller elects to direct a such Tax Contest; and, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do sowhere deemed necessary by Seller, and the Purchaser shall cooperate and Buyer shall cause the Company, the Subsidiaries and the Joint Ventures relevant entity to fully cooperate, at the Seller’s expense, in each phase authorize by appropriate powers of attorney such Contest. If the Seller elects not to direct the Contest, the persons as Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of designate to represent such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant entity with respect to such audit or refund claim or related administrative or judicial proceeding which would adversely affect the other party for and to settle or otherwise resolve any such taxable period or a subsequent taxable period proceeding; PROVIDED that in any case under this subsection, (x) Seller shall not, without the prior written consent of the other partyBuyer, which consent may shall not be unreasonably withheld. In , accept any proposed adjustment or enter into any settlement or agreement in compromise or otherwise dispose of any such Contestaudit 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 or Tax basis, depreciation, amortization, useful lives, net operating losses, or similar Tax items of Buyer, the costs Company or any of its Subsidiaries for Taxable periods or portions thereof ending after the Closing Date and expenses (y) Seller shall keep Buyer informed as to the progress of the party assuming any audit or refund claim or related administrative or judicial proceeding which Seller has taken control of and Buyer shall have the right to consult with Seller during such Contest shall be paid first from any recovery before any payments are made to either party. The Purchaser may participate, proceedings at its own expense. Buyer shall further execute and deliver, in 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 Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
Tax period (dor portion thereof) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause of the Company and ending on or before the Subsidiaries Closing Date shall be paid promptly to cooperate, Seller in the defense against or compromise of any claim in any Contestaccordance with Section 5.3(c) hereof.
Appears in 2 contracts
Sources: Agreement of Merger (Tsi Finance Inc), Stock Purchase Agreement (Tsi Finance Inc)
Contests. (a) After the Merger Effective TimeClosing Date, the Purchaser Acquirors shall promptly notify the Seller THCI 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 Subsidiary Acquirors or any Joint Venture of their respective Affiliates which, if determined adversely to the taxpayer or after the lapse of time, could would be grounds for indemnification by the Seller under Section 7.017.06. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, Acquirors or the Company, any Subsidiary or any Joint Venturerelevant Affiliate) describing the asserted Tax Liability liability in reasonable detail and shall include copies of any notice or other document received from any taxing Tax authority in respect of any such asserted Tax Liabilityliability. Any failure by If the Purchaser Acquirors fail to give the Seller THCI prompt notice of an asserted Tax Liability liability as required by this Section 7.037.07 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 limit the have any obligation of the Seller to indemnify the Purchaser, the Company, for any Subsidiary or any Joint Venture for loss arising out of such asserted Tax Liability unless and only liability to the extent that THCI was prejudiced as a result of such failure resulted in an economic detriment to the Sellerfailure.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 THCI may elect to direct and controldirect, through counsel of its own choosingchoosing and at its own expense, any Contest audit, claim for refund and administrative or judicial proceeding involving any asserted Tax Liability liability with respect to which indemnity may be sought from under Section 7.06 relating to any taxable period ending on or before the Seller pursuant Closing Date (any such audit, claim for refund or proceeding relating to Section 7.01an asserted Tax liability is referred to herein as a "CONTEST"). If the Seller THCI elects to direct a Contest, the Seller it shall within thirty (30) 30 calendar days of receipt of the notice of asserted Tax Liability liability notify the Purchaser Acquirors in writing of its intent to do so, and the Purchaser Acquirors shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures their respective Affiliates or their respective successors to fully cooperate, at the Seller’s THCI's expense, in each phase of such Contest. In each such case, neither the Acquirors nor any of their respective Affiliates may settle or compromise any asserted Tax liability over the objection of THCI. If the Seller THCI elects not to direct the ContestContest or fails to notify the Acquiror of its election as herein provided, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary Acquirors or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent their respective Affiliates may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participatecontest, at its their own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(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 such asserted Tax liability or pay or compromise of any claim in any Contestsuch asserted Tax liability at THCI's expense.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Westfield America Inc), Asset Purchase Agreement (Rouse Company)
Contests. (a) After the Merger Effective TimeClosing, the Purchaser shall -------- promptly notify the Seller Shareholders 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 Subsidiary Company or any Joint Venture Company Subsidiary which, if determined adversely to the taxpayer or after the lapse of time, could be is likely to give rise to grounds for indemnification by the Seller under Section 7.01Shareholders. 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 liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority Tax Authority in respect of any such asserted Tax Liabilityliability. Any failure by If the Purchaser fails to give the Seller Shareholders prompt notice of an asserted Tax Liability as required liability, then (i) if the Shareholders are precluded by this Section 7.03the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, the Shareholders shall not limit the have any obligation of the Seller to indemnify for any loss arising out of such asserted Tax liability, and (ii) if the PurchaserShareholders are not so precluded from contesting, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that but such failure resulted to give prompt notice results in an economic a detriment to the SellerShareholders, any amount which the Shareholders are otherwise required to pay the Purchaser with respect to such liability shall be reduced by the amount of such detriment.
(b) In Except as indicated in the case last sentence of a Tax audit or this Section 8.04(b), the Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 counsel of its own choosing, any Contest involving any asserted Tax Liability liability with respect to which indemnity may be sought from the Seller pursuant Shareholders (any such audit, claim for refund or proceeding relating to Section 7.01an asserted Tax liability are referred to herein collectively as a "Contest"). If the Seller elects Shareholders elect to direct a Contestthe Contest of an asserted Tax ------- liability, the Seller shall they shall, within thirty (30) 30 calendar days of receipt of the notice of asserted Tax Liability liability, notify the Purchaser of its their intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries Company and the Joint Ventures Company Subsidiaries to fully cooperate, at the Seller’s Shareholders' expense, in each phase of such Contest. If the Seller elects Shareholders elect not to direct the Contest, the Seller shall promptly fail to notify the Purchaser and the Purchaserof their election as herein provided or contest their indemnification obligation, the CompanyPurchaser may pay, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participatecontest, at its own expense, such asserted liability. However, in such case, the Purchaser may not settle or compromise any Contest in which asserted liability over the Seller assumes controlobjection of the Shareholders; provided, however, that consent to settlement or compromise shall not be -------- ------- unreasonably withheld. In any event, both the Purchaser and the Seller Shareholders may participate, at its their own expense, in any the Contest. If a Contest in includes both an asserted liability with respect to which an indemnity may be sought from the Purchaser assumes controlShareholders 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.
(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 2 contracts
Sources: Registration Rights Agreement (Pogo Producing Co), Merger Agreement (Pogo Producing Co)
Contests. (a) After the Merger Effective TimeClosing, the Purchaser shall promptly notify the Seller Sellers’ Representative in writing of the any written notice of a proposed assessment or the commencement of any Tax claim in an audit or administrative or judicial proceeding of the Purchaser or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture Company which, if determined adversely to the taxpayer or after the lapse of timetaxpayer, could would be grounds for indemnification by under this Article VI; provided, however, that the Seller failure to give such notice will not affect the Purchaser’s right to indemnification under Section 7.01. Such notice shall contain factual information (this Article VI except to the extent known to the Purchaserextent, its Affiliatesif any, that, but for such failure, the Company, any Subsidiary Sellers could have avoided all 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 a portion of the Seller to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted liability in an economic detriment to the Sellerquestion.
(b) In the case of a Tax an audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of Closing Date, provided that, and only to the Mergerextent that, the Seller Sellers acknowledge in writing their liability under this Agreement to hold the Purchaser and the Company harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding, the Sellers’ Representative shall have the sole right at his expense to participate in and control the conduct of such audit or proceeding; the Purchaser also may participate in any such audit or proceeding at its own expense and, if the Sellers’ Representative does not assume the defense of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including settling such audit or proceeding after fifteen days prior written notice to the Sellers’ Representative setting forth the terms and conditions of settlement. Notwithstanding anything to the contrary contained in Section 8.05, in the event that issues relating to a potential adjustment for which the Sellers have acknowledged liability are required to be contested in the same audit or proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to direct and control the conduct ofaudit or proceeding with respect to the latter issues; provided, or pursue or settlehowever, that the Purchaser shall not have the right to settle any such Contestmatter without the consent of the Sellers’ Representative, which consent shall not be unreasonably withheld.
(c) With respect Notwithstanding anything to Straddle Periodsthe contrary contained in Section 6.04, the Seller may elect to direct and control, through counsel of its own choosing, any Contest involving any asserted Tax Liability with respect to issues relating to a potential adjustment for which indemnity may be sought from both the Seller pursuant to Sellers (as evidenced by their written acknowledgement under this Section 7.01. If the Seller elects to direct a Contest, the Seller shall within thirty (306.04) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause or the CompanyCompany could be liable, (i) both the Subsidiaries Sellers’ Representative and the Joint Ventures to fully cooperate, at Purchaser may participate in the Seller’s expense, audit or proceeding; (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 and any corresponding adjustments that may reasonably be anticipated for future taxable periods; and (iii) the controlling party shall not settle any such matter without the consent of the non-controlling party (which consent shall not be unreasonably withheld). The principle set forth in each phase this Section 6.04(c) also shall govern for purposes of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify deciding any issue that must be decided jointly (including choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VI by the Purchaser and the PurchaserSellers’ Representative.
(d) With respect to any Tax audit or proceeding for a taxable period that begins before the Closing Date, neither 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, Purchaser nor the Seller, on the other hand, Sellers’ Representative shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller Sellers’ Representative 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 Contestsuch audit or proceeding.
Appears in 1 contract
Sources: Stock Purchase Agreement (Lincoln Educational Services Corp)
Contests. (aA) After If the Merger Effective TimeBuyer or the Company receives written notice of any pending or threatened audit or other examination by any Governmental Authority, or any judicial or administrative proceedings relating to Taxes (each, a “Tax Contest”) that would reasonably be expected to result in Losses that are indemnifiable under this Agreement, the Purchaser Buyer shall promptly notify the Sellers’ Representative. If the Sellers’ Representative or any Seller receives written notice of a Tax Contest that would reasonably be expected to result in writing of Losses that are indemnifiable under this Agreement, such Party shall promptly notify 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 AffiliatesBuyer. In each case within this clause (v), the Company, any Subsidiary failure or any Joint Venture 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. Such delay in delivering such notice shall contain factual information (to the extent known to the Purchaser, not relieve a Party of 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 Subsidiary or any Joint Venture for such Tax Liability unless and only obligations hereunder except to the extent that such Party is actually and materially prejudiced by such failure resulted in an economic detriment to the Selleror delay.
(bB) In If such Tax Contest relates solely to any Past Period, and not to the case of a Tax audit Straddle Period or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Mergerany post-Closing period, the Seller Sellers’ Representative shall have the sole right, at its expenseright (but not the obligation), to direct be exercised within ten (10) Business Days following its receipt of the written notice of such Tax Contest by delivering written notice to the Buyer, to assume and thereafter conduct and control the conduct ofdefense 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 Context which may adversely impact the Buyer or the Company for a post-Closing period or the Tax attributes of the Company without the prior written consent of the Buyer (not to be unreasonably withheld, conditioned, or pursue 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 settleunder 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.
(cD) With respect to Straddle PeriodsFor the avoidance of doubt, the Seller may elect procedures relating 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, governed by this clause (v) and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlnot by Section 7(d)(ii).
(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
Sources: Stock Purchase Agreement (Travelzoo)
Contests. The Sellers and their duly appointed representatives shall have the exclusive authority to control any audit or examination by any taxing authority, to initiate any claim for refund, to amend any Tax return and to contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any liability of the Target or its Subsidiaries for Taxes reflected on any Tax returns covering any Pre-Closing Periods; PROVIDED, HOWEVER, that (a) After neither the Merger Effective TimeSellers nor any of their duly appointed representatives shall, 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 Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the prior written consent of the other partyBuyer, which consent may shall not be unreasonably withheld, file any claim for refund, amend any Tax return or enter into any settlement of any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Buyer or any of its Affiliates for any Tax period beginning after the Closing Date (a "POST-CLOSING PERIOD") or any portion of an Overlap Period beginning after the Closing Date, and (b) neither the Sellers nor any of their duly appointed representatives shall, without the prior consent of the Buyer, which consent shall not unreasonably be withheld, enter into any settlement of any contest or otherwise compromise any issue that would increase any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Buyer of any amount under Section 9.3 unless the Sellers shall have agreed to indemnify the Buyer for payment of such Taxes. In Buyer and its duly appointed representatives shall have the exclusive authority to control any such Contestaudit or other proceeding relating to Taxes for any taxable year or other taxable period ending after the Closing Date; PROVIDED, HOWEVER, that (a) neither Buyer, the costs and expenses Target nor any of their duly appointed representatives shall, without the prior written consent of the party assuming control Sellers, which consent shall not be unreasonably withheld, enter into any settlement of such Contest any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Sellers or any of their affiliates for any Pre-Closing Period or any portion of the Overlap Period ending on the Closing Date, and (b) neither Buyer, the Target nor any of their duly appointed representatives shall, without the prior consent of the Sellers, which consent shall not unreasonably be withheld, enter into any settlement of any contest or otherwise compromise any issue that would reduce any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Sellers of any amount under Section 9.3 unless Buyer shall have waived or caused to be waived for itself and the Target any right to indemnification for Taxes from the Sellers. The Sellers shall be paid first from entitled to any recovery before Tax refund relating to the Target and its Subsidiaries to the extent such Tax refund relates to any payments are made to either party. The Purchaser may participatePre-Closing Period or any portion of the Overlap Period ending on the Closing Date, at its own expense, in any Contest unless such refund has been recorded as an Asset on the Closing Balance Sheet in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlcase Buyer shall be entitled thereto.
(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. (a) Sellers will allow the Company and its counsel to participate at its own expense in any audits of a consolidated, combined or unitary Tax Return of an Affiliated Group of which the Company or any 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 Person that owned the Company and its Subsidiaries both before and after the Closing Date.
(b) After the Merger Effective TimeClosing, the Purchaser Purchasers shall promptly notify the Seller Sellers 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 AffiliatesPurchasers, the Company, any Subsidiary Company or any Joint Venture of its Subsidiaries which, if determined adversely to the taxpayer or after the lapse of time, could time would be grounds for indemnification by the Seller under Section 7.018.01(a). Such notice shall contain factual information (to the extent known to the Purchaser, its AffiliatesPurchasers, the Company, any Subsidiary Company or any Joint Ventureits Subsidiaries) describing the asserted Tax Liability liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority Tax Authority in respect of any such asserted Tax Liabilityliability. Any failure by the Purchaser If Purchasers fail to give the Seller Sellers prompt notice of an asserted Tax Liability liability as required by this Section 7.038.05(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 limit the have any obligation of the Seller to indemnify the Purchaserfor any loss arising out of such asserted Tax liability, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that (ii) if Sellers are not so precluded from contesting but such failure resulted to give prompt notice results in an economic a detriment to Sellers, then any amount which Sellers are otherwise required to pay Purchasers pursuant to Section 8.01(a) with respect to such liability shall be reduced by the Seller.
(b) In the case amount of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, the Seller shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, such Contestdetriment.
(c) With respect to Straddle Periods, the Seller Sellers may elect to direct and controldirect, through counsel of its their own choosingchoosing and at their own expense, any Contest audit, claim for refund and administrative or judicial proceeding involving any asserted Tax Liability liability with respect to which indemnity may be sought from the Seller pursuant under Section 8.01(a) (any such audit, claim for refund or proceeding relating to Section 7.01an asserted Tax liability are referred to herein collectively as a "Contest"). If the Seller elects Sellers elect to direct a Contestthe Contest of an asserted Tax liability, the Seller shall they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax Liability liability (but not less than five (5) days before the due date of any protest or other claim in respect thereof), notify the Purchaser Purchasers of its their intent to do soso and acknowledge in writing, in form and the Purchaser substance satisfactory to Purchasers, their obligation to indemnify Purchasers in full therefor. Purchasers shall cooperate and shall cause the Company, the its Subsidiaries and the Joint Ventures or their successors to fully cooperate, at the Seller’s expense, cooperate in each phase of such Contest. If the Seller elects not Sellers choose to direct the Contest, the Seller Purchasers shall promptly notify empower and shall cause the Purchaser Company, its Subsidiaries and the Purchasertheir successors promptly to empower (by power-of-attorney and such other documentation as may be appropriate) such representatives of Sellers as they may designate to represent Purchasers, the Company, any Subsidiary its Subsidiaries or any Joint Venture shall assume control of such their successors in the Contest (at insofar as the Purchaser’s expenseContest involves an asserted Tax liability for which Sellers would be liable under Section 8.01(a). The Seller shall fully cooperate If Sellers elect not to direct the Contest and acknowledge in each phase of such Contest. Neither the Purchaserwriting, the Companyin form and substance satisfactory to Purchasers, any Subsidiary or any Joint Venturetheir obligation to indemnify Purchasers in full therefor, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser then (i) Sellers may participate, at its their own expense, in any the Contest in which the Seller assumes controland (ii) neither Purchasers, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company nor any Subsidiary shall settle or compromise any asserted liability over the objection of Sellers. If Sellers elect not to direct the Contest and the Subsidiaries fail to cooperateprovide such acknowledgment, then (x) Sellers shall have no right to participate in the defense against Contest and (y) Purchasers, the Company or its Subsidiaries may pay, compromise of any claim or contest such asserted liability in any Contesttheir sole discretion.
Appears in 1 contract
Contests. (a) After 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 Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case event any Governmental Authority determines that Transmission Provider’s receipt of a Tax audit payments or administrative or judicial proceeding (a “Contest”) property constitutes income that relates is subject to taxable periods ending on or before the date of the Mergertaxation, the Seller Transmission Provider shall have the sole rightnotify Interconnection Customer, at its expensein writing, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days Calendar Days of receipt receiving notification of such determination by a Governmental Authority. Upon the timely written request by Interconnection Customer and at Interconnection Customer's sole expense, Transmission Provider may appeal, protest, seek abatement of, or otherwise oppose such determination. Upon Interconnection Customer's written request and sole expense, Transmission Provider may file a claim for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such a determination. Transmission Provider reserves the right to make all decisions with regard to the prosecution of such appeal, protest, abatement or other contest, including the selection of counsel and compromise or settlement of the notice claim, but Transmission Provider shall keep Interconnection Customer informed, shall consider in good faith suggestions from Interconnection Customer about the conduct of asserted Tax Liability notify the Purchaser of its intent to do socontest, and shall 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 appeal, protest, abatement or other contest. At any time during the Purchaser contest, Transmission Provider may agree to a settlement either with Interconnection Customer's consent or after obtaining written advice from nationally-recognized tax counsel, selected by Transmission Provider, but reasonably acceptable to Interconnection Customer, that the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection Customer's obligation shall cooperate and shall cause be based on the Companyamount of the settlement agreed to by Interconnection Customer, or if a higher amount, so much of the Subsidiaries and settlement that is supported by the Joint Ventures to fully cooperate, at written advice from nationally-recognized tax counsel selected under the Seller’s expense, in each phase terms of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense)preceding sentence. The Seller settlement amount shall be calculated on a fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, grossed-up basis to cover any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent related cost consequences of the other party, which current tax liability. Any settlement without Interconnection Customer's consent may not be unreasonably withheld. In any or such Contest, the costs and expenses of the party assuming control of such Contest shall be paid first written advice will relieve Interconnection Customer from any recovery before any payments are made obligation to either party. The Purchaser may participate, indemnify Transmission Provider for the tax at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, issue in the defense against or compromise of any claim in any Contestcontest.
Appears in 1 contract
Contests. (ai) After the Merger Effective TimeWith respect to any Pre-Closing Tax Return, the Purchaser Sellers and their duly appointed representatives shall promptly notify have the Seller in writing sole right, at their expense, to supervise or otherwise coordinate any examination process and to negotiate, resolve, settle or contest any asserted Tax deficiencies or assert and prosecute any claims for refund. The foregoing notwithstanding, without the express written consent of Buyer, which consent shall not be unreasonably withheld, the Sellers shall not file any amended Tax Return, enter into any agreement, settle any Tax claim or assessment, surrender any right to claim a refund of Tax, consent to any extension or waiver of the proposed assessment or the commencement of limitation periods applicable to any Tax audit claim or administrative assessment, or judicial proceeding or of take any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, other action if determined adversely to the taxpayer or after the lapse of 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 action would have the effect of increasing Buyer Tax Liability. Any failure by the Purchaser Liabilities, unless such action is required 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Sellercomply with applicable law.
(bii) In the case of a With respect to any other Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the MergerReturn, the Seller Buyer and its duly appointed representatives shall have the sole right, at its expense, to direct supervise or otherwise coordinate any examination process and control the conduct ofto negotiate, resolve, settle or pursue or settle, such Contest.
(c) With respect to Straddle Periods, the Seller may elect to direct and control, through counsel of its own choosing, any Contest involving contest 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 Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, deficiencies or assert and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, prosecute any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense)claims for refund. The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaserforegoing notwithstanding, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the express written consent of the other partySellers, which consent may shall not be unreasonably withheld. In , Buyer shall not file any amended Tax Return, enter into any agreement, settle any Tax claim or assessment, surrender any right to claim a refund of Tax, consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, or take any other action if any such Contest, action would have the costs and expenses effect of the party assuming control of such Contest shall be paid first from any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, in any Contest in which increasing the Seller assumes controlTax Liabilities, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlunless such action is required to comply with applicable law.
(diii) The Purchaser and Each party hereto shall, within twenty (20) days (unless action is required sooner, then as soon as practicable), notify the Seller agree to cooperate, and other of the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, in the defense against or compromise assertion of any claim in or the commencement of any Contestsuit, action, proceeding, investigation or audit with respect to the operations of KVT that is the subject of this Paragraph 3(g)(iii), and shall provide the other party with copies (subject to deletion of irrelevant information) of all correspondence relating to such contest.
Appears in 1 contract
Contests. (a) After the Merger Effective TimeClosing, the Purchaser shall promptly notify the Seller Sellers in writing of the any written notice of a proposed assessment or the commencement of any Tax claim in an audit or administrative or judicial proceeding of the Purchaser or of any demand or claim on of the Purchaser, its Affiliates, Partnership and the Company, any Subsidiary or any Joint Venture Subsidiaries which, if determined adversely to the taxpayer or after the lapse of timetaxpayer, could would be grounds for indemnification by under this Article VI or could otherwise result in any Tax cost to any of the Seller Sellers; provided, however, that a failure to give such notice will not affect the Purchaser's right to indemnification under Section 7.01. Such notice shall contain factual information (this Article VI except to the extent known to such failure on the Purchaser, its Affiliates, part of the Company, any Subsidiary Purchaser or any Joint Venture) describing the asserted Tax Liability in reasonable detail and shall include copies Affiliate 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 prejudices the Seller prompt notice Sellers by preventing the avoidance of an asserted Tax Liability as required by this Section 7.03, shall not limit the obligation all or a portion of the Seller to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted liability in an economic detriment to the Sellerquestion.
(b) In the case of a Tax an audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date Closing Date, provided that the Sellers acknowledge in writing their indemnification obligation liability under Article VI of this Agreement with respect to the potential liability of the MergerPurchaser, the Seller Partnership or any Subsidiary as a result of such audit or administrative or judicial proceeding, the Sellers (or the Parent Entities, as the case may be) shall have the sole right, at their expense, to participate in and control the conduct of such audit or proceeding; the Purchaser may also participate in any such audit or proceeding but only if such audit or proceeding relates to non-income Taxes and, if the Sellers do not assume the defense of any such audit or proceeding, the Purchaser, at its expense, may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Sellers have acknowledged their indemnification obligation are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to direct and control the conduct ofaudit or proceeding with respect 44 to the latter issues, or pursue or settle, such Contestprovided that the Purchaser provides the Sellers with a written acknowledgement of the Purchaser's liability.
(c) With respect to Straddle PeriodsNotwithstanding Section 6.04(b), 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify neither the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, Sellers shall enter into any compromise or agree to settle any claim pursuant to such any Tax audit or proceeding, including without limitation a Federal, state or local income Tax audit or proceeding to the extent it involves Partnership items, which would adversely affect the other party for such taxable period year or a any prior or subsequent taxable period year without the written consent of the other party, party which consent may not be unreasonably withheld. In If the Purchaser or the Sellers refuse to provide the respective other party with written consent to settle any such Contestclaim, then the costs and expenses of parties shall submit the party assuming control of such Contest shall be paid first from any recovery before any payments are made matter to either party. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, an Independent Firm and the Seller may participate, at its own expense, in any Contest in which Independent Firm shall resolve the issue based on a standard of maximal fairness to both the Purchaser assumes controland the Sellers.
(d) The Purchaser and the Seller agree Sellers (or the Parent Entities, as the case may be) shall cooperate fully, as and to cooperatethe extent reasonably requested by the other party, in connection with (i) the filing of Returns pursuant to Section 6.03 (including such amended Returns for periods (or portions thereof) ending on or prior to the Closing Date that the Sellers or the Parent Entities may reasonably request the Purchaser to file; provided, however, that if in the Purchaser's reasonable judgment the filing of the amended return would be disadvantageous to the Purchaser, the Purchaser may deny the Sellers' or the Parent Entities' request and the Purchaser agrees parties shall submit the matter to cause the Company an Independent Firm and the Subsidiaries Independent Firm shall resolve the issue based on a standard of maximal fairness to cooperateboth the Purchaser and the Sellers or the Parent Entities, in as the defense against case may be]) and (ii) any audit, litigation or compromise of any claim in any Contestother proceeding with respect to Taxes.
Appears in 1 contract
Sources: General Partnership Interest Purchase Agreement (Galileo International Inc)
Contests. (a) After 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 Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case event any Governmental Authority determines that Transmission Provider’s receipt of a Tax audit payments or administrative or judicial proceeding (a “Contest”) property constitutes income that relates is subject to taxable periods ending on or before the date of the Mergertaxation, the Seller Transmission Provider shall have the sole rightnotify Interconnection Customer, at its expensein writing, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days Calendar Days of receipt receiving notification of such determination by a Governmental Authority. Upon the timely written request by Interconnection Customer and at Interconnection Customer’s sole expense, Transmission Provider may appeal, protest, seek abatement of, or otherwise oppose such determination. Upon Interconnection Customer’s written request and sole expense, Transmission Provider may file a claim for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such a determination. Transmission Provider reserves the right to make all decisions with regard to the prosecution of such appeal, protest, abatement or other contest, including the selection of counsel and compromise or settlement of the notice claim, but Transmission Provider shall keep Interconnection Customer informed, shall consider in good faith suggestions from Interconnection Customer about the conduct of asserted Tax Liability notify the Purchaser of its intent to do socontest, and shall 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 appeal, protest, abatement or other contest. At any time during the Purchaser contest, Transmission Provider may agree to a settlement either with Interconnection Customer’s consent or after obtaining written advice from nationally-recognized tax counsel, selected by Transmission Provider, but reasonably acceptable to Interconnection Customer, that the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection Customer’s obligation shall cooperate and shall cause be based on the Companyamount of the settlement agreed to by Interconnection Customer, or if a higher amount, so much of the Subsidiaries and settlement that is supported by the Joint Ventures to fully cooperate, at written advice from nationally-recognized tax counsel selected under the Seller’s expense, in each phase terms of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense)preceding sentence. The Seller settlement amount shall be calculated on a fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, grossed-up basis to cover any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent related cost consequences of the other party, which current tax liability. Any settlement without Interconnection Customer’s consent may not be unreasonably withheld. In any or such Contest, the costs and expenses of the party assuming control of such Contest shall be paid first written advice will relieve Interconnection Customer from any recovery before any payments are made obligation to either party. The Purchaser may participate, indemnify Transmission Provider for the tax at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, issue in the defense against or compromise of any claim in any Contest.contest. Arizona Public Service Company APS Contract No. 52023 LGIA (Large Generator Interconnection Agreement)
Appears in 1 contract
Contests. (a) After the Merger Effective TimeClosing, Acquirer and the Purchaser Shareholders shall promptly notify the Seller each other 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 Subsidiary or any Joint Venture which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification received by the Seller under Shareholders, Acquirer or Target from any Tax authority or other party with respect to Taxes for which the Shareholders are liable pursuant to Section 7.0112.01(a). Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Ventureknown) describing the asserted Tax Liability liability in reasonable detail and shall include copies of any notice or other document received from any taxing Tax 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Sellerliability.
(b) In the case of a Tax audit The Shareholders (or administrative or judicial proceeding (a “Contest”their designee) that relates to taxable periods ending on or before the date of the Merger, 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 controlcontrol the conduct, through counsel of its own choosingchoosing and at its own expense, of any Contest audit, claim for refund and administrative or judicial proceeding involving any asserted Tax Liability liability with respect to which indemnity may be sought from the Seller pursuant under Section 12.01(a) (any such audit, claim for refund or proceeding relating to Section 7.01an asserted Tax liability is referred to herein as a "Contest "). If the Seller elects Shareholders (or their designee) elect to direct control a Contest, the Seller it shall within thirty (30) 20 calendar days of receipt of the notice of asserted Tax Liability liability notify the Purchaser Acquirer of its intent to do so, and the Purchaser Shareholders (or their designee) shall cooperate and have all rights to settle, compromise and/or concede such asserted liability; provided, however, that Acquirer shall cause have the Company, right to consult with the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, Shareholders regarding any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely that may affect the other party Acquirer or Target for such taxable any Post-Closing Period and provided further that the Shareholders shall not have the right to settle, compromise and/or concede any Contest that may affect the Acquirer or Target for any period or a subsequent taxable period after the Closing Date without the Acquirer's prior written consent of the other partyconsent, which consent may shall not be unreasonably withheld. In any such ContestIf the Shareholders elect not to control the Contest or fails to notify Acquirer of its election as herein provided, the 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. The Purchaser Acquirer may participatepay, compromise or contest, at its own expense, subject to (i) reimbursement by the Shareholders for reasonable third party expenses and (ii) the Shareholders' indemnification obligations under Section 12.01(a). Acquirer shall have the sole right to represent Target in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlother Contest.
(dc) The Purchaser 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 Seller agree payment by Acquirer or Target of more Tax than would have been required to cooperatebe paid had such position not been taken or such settlement or agreement not been reached, and (ii) affects the Purchaser agrees to cause determination of useful life, basis or method of depreciation, amortization or accounting of any of the Company and assets or properties of Target or (iii) accelerates the Subsidiaries to cooperatetime at which any Tax must be paid by Acquirer or Target, then the Shareholders, in the defense against 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 compromise of Tax cost or any claim Related Costs arising from, in any Contestconnection with or otherwise with respect to such position.
Appears in 1 contract
Sources: Merger Agreement (National Medical Health Card Systems Inc)
Contests. (a) After 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 Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case event any Governmental Authority determines that any Participant’s receipt of a Tax audit payments or administrative or judicial proceeding (a “Contest”property constitutes income that is subject to taxation, Operating Agent upon notification from such Participant(s) that relates to taxable periods ending on or before the date of the Mergershall notify Interconnection Customer, the Seller shall have the sole rightin writing, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days Calendar Days of receipt receiving notification of such determination by a Governmental Authority. Upon the timely written request by Interconnection Customer and at Interconnection Customer's sole expense, Operating Agent or affected Participant(s), as permissible, may appeal, protest, seek abatement of, or otherwise oppose such determination. Upon Interconnection Customer's written request and sole expense, Operating Agent or applicable Participants, as permissible, may file a claim for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such a determination. The affected Participant(s) reserve the right to make all decisions with regard to the prosecution of such appeal, protest, abatement or other contest, including the selection of counsel and compromise or settlement of the notice 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 asserted Tax Liability notify the Purchaser of its intent to do socontest, and the Purchaser shall cooperate and reasonably permit Interconnection Customer or Interconnection Customer’s representative to attend contest proceedings. Interconnection Customer shall cause the Companypay to Operating Agent on a periodic basis, as invoiced by Operating Agent, the Subsidiaries and affected Participant’s documented reasonable costs of prosecuting such appeal, protest, abatement or other contest. Any such payments received by Operating Agent shall be distributed to the Joint Ventures to fully cooperate, at affected Participants based on such Participant’s documented reasonable costs. At any time during the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contestcontest, the Seller affected Participant(s) may agree to a settlement either with Interconnection Customer's consent or after obtaining written advice from nationally-recognized tax counsel, selected, by the affected Participant(s) but reasonably acceptable to Interconnection Customer, that the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection Customer's obligation shall promptly notify be based on the Purchaser and amount of the Purchasersettlement agreed to by Interconnection Customer, or if a higher amount, so much of the Company, any Subsidiary or any Joint Venture shall assume control settlement that is supported by the written advice from nationally-recognized tax counsel selected under the terms of such Contest (at the Purchaser’s expense)preceding sentence. The Seller settlement amount shall be calculated on a fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, grossed-up basis to cover any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent related cost consequences of the other party, which current tax liability. Any settlement without Interconnection Customer's consent may not be unreasonably withheld. In any or such Contest, the costs and expenses of the party assuming control of such Contest shall be paid first written advice will relieve Interconnection Customer from any recovery before any payments are made obligation to either party. The Purchaser may participate, indemnify the Participant(s) for the tax at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, issue in the defense against or compromise of any claim in any Contestcontest.
Appears in 1 contract
Contests. (a) After the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing Each 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 Subsidiary or any Joint Venture 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. 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 CompanyCompany 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 the Recipient of written notice of any Subsidiary pending or any Joint Venture threatened audit, deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim ("Tax Claim") that could affect the liability for Taxes of such other party, and such notice shall provide the details of such Tax Liability unless Claim. If the Recipient fails to give such prompt notice to the other party, the Recipient shall not be entitled to indemnification for any Taxes arising in connection with such Tax Claim if and only to the extent that such failure resulted in an economic detriment to give notice materially and adversely affects the Sellerother party.
(b) In Seller shall have the case of a sole right to represent and control the Acquired Companies' interests in any Tax audit or administrative or judicial proceeding (a “Contest”) that relates Claim relating to taxable periods ending on or before the date Closing Date and to employ counsel of the Mergerits choice at its expense; PROVIDED, the HOWEVER, that Seller shall have no right to represent the sole right, at its expense, to direct and control the conduct of, or pursue or settle, Acquired Companies' interest in any such Contest.
(c) 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 Seller elects to direct a Contest, the Claim unless Seller shall have first notified Purchaser in writing of Seller's intention to do so within thirty twenty (3020) days of receipt notification of the notice Tax Claim by Purchaser. Purchaser may participate in such Tax Claim at its own expense. In the case of asserted a Split Tax Liability notify Period, Seller shall be entitled to participate at its expense in any Tax Claim relating in any part to Taxes attributable to the Purchaser Pre-Closing Period and, with the prior written consent of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperatePurchaser, at the Seller’s 's sole expense, in each phase of such Contest. If may assume the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense)entire Tax Claim. The Seller shall fully cooperate in each phase None of such Contest. Neither the Purchaser, the Companyany of its Affiliates, any Subsidiary or any Joint VentureAcquired Company may settle or otherwise dispose of any Tax Claim for which Seller may have a liability under this Agreement, on the one handor which may result in an increase in Seller's liability under this Agreement, nor the Seller, on the other hand, shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the prior written consent of the other partySeller, which consent may not be unreasonably withheld, unless Purchaser and the Acquired Companies fully indemnify Seller in writing with respect to such liability in a manner satisfactory to Seller. In Neither Seller nor any of its affiliates may settle or otherwise dispose of any Tax Claim for which Purchaser or the Acquired Companies may have a liability under this Agreement, or which may result in an increase in Purchaser's or the Acquired Companies' liability under this Agreement, without the prior written consent of Purchaser, which consent may not be unreasonably withheld, unless Seller fully indemnifies Purchaser and the Acquired Companies in writing with respect to such Contestliability in a manner satisfactory to Purchaser.
(c) Seller shall use its reasonable best efforts to minimize any interest, the costs penalties, and expenses of the party assuming control of such Contest shall other additions to Taxes that may be paid first from payable with respect to any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, in any Contest in Tax Claim for which the Seller assumes control, has the right to represent and control the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlAcquired Companies' interests.
(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. (a) After the Merger Effective Time, the Purchaser shall promptly notify the Seller Unless Buyer agrees in writing of to waive any claim for indemnification with respect thereto, Seller shall have exclusive control over and responsibility to conduct any Contest (as such term is defined in Article IA) for any tax periods ended on or before the proposed assessment or the commencement of Closing Date. Buyer shall have exclusive control over and responsibility to conduct any Tax audit or administrative or judicial proceeding or of Contest for any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely to the taxpayer or tax periods beginning after the lapse of 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the SellerClosing Date.
(b) In the case Not later than fifteen days after written notice of a Tax audit Contest is received by Buyer or administrative the Company, Buyer shall notify Seller in writing of receipt by Buyer or judicial proceeding (the Company of notice of any Contest relating to a “Contest”) that relates to taxable periods ending tax period ended on or before the date Closing Date. With respect to each such Contest if failure of Buyer to comply substantially with the Mergerprovisions of this paragraph (b) for such notice of Contest precludes Seller from prosecuting such Contest, the then Seller shall have be relieved from any liability with respect to such Contest under this Article VI. Buyer shall also be responsible for any interest and/or penalties which become payable as a result of Buyer's failure to give notice within the sole right, at its expense, to direct and control the conduct of, or pursue or settle, such Contesttime provided above.
(c) 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the PurchaserBuyer, the Company, and Seller agree to cooperate and assist fully with each other with respect to defending or answering any Subsidiary or Contest and to provide each other with all materials, information and documents as reasonably requested by the other.
(d) In any Joint Venture shall assume control of Contest controlled by Seller, Buyer will take, and will cause the Company to take, such action as Seller may by written notice reasonably request in connection with such Contest (at including the Purchaser’s expense). The payment of any tax preparatory to filing a claim for refund of such tax; provided that Seller shall fully cooperate in each phase first pay the amount of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or agree tax to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheldBuyer). In any such Contest, Seller shall indemnify and hold Buyer, the costs Company and expenses their Affiliates harmless from and against any interest and penalties incurred in connection with any such action taken at Seller's request.
(e) Notwithstanding the foregoing provisions of this Section 6.3, Seller shall consult with Buyer with respect to the party assuming control resolution of any issue that arises in connection with a Contest for any tax periods ended on or before the Closing Date if such Contest issue would affect Buyer or the Company in any post acquisition taxable year, and Seller shall not settle any such issue or file any amended return with respect to such issue without the consent of Buyer, which consent shall not be paid first from any recovery before any payments are made to either partyunreasonably withheld. The Purchaser Where consent is withheld by Buyer, Buyer may participate, continue or initiate further proceedings at its own expense. In such case where Buyer withholds consent, in any Contest in which liability of Seller shall not exceed the liability Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlwould have incurred had Buyer not withheld consent.
(df) The Purchaser and the Not later than fifteen days after written notice of a Contest is received by Seller, Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, shall notify Buyer in the defense against or compromise writing of any claim in Contest for any tax periods after the Closing Date. With respect to each such Contest if failure of Seller to comply substantially with the provisions of this paragraph (f) for such notice of Contest precludes Buyer from prosecuting such Contest, then Seller shall be responsible for any interest and/or penalties which become payable as a result of Seller's failure to give notice within the time provided above; provided, however, that Buyer has filed within 30 days of the Closing Date with the appropriate federal, state and local tax authorities a notice of change of address and provided, further, that Seller's responsibility under this paragraph (f) shall terminate one year from the Closing Date.
Appears in 1 contract
Contests. (a) After the Merger Effective TimeClosing, 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 PurchaserTEC, its AffiliatesAenP, the Company, any Subsidiary or any Joint Venture Electroandes which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.019.11. 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 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 Liabilityliability. Any failure by the If Purchaser fails to give the Seller prompt notice of an asserted Tax Liability liability as required by this Section 7.039.13, then Seller shall not limit the have any obligation of the Seller to indemnify the Purchaserfor any loss arising out of such asserted Tax liability, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and but only to the extent that failure to give such failure resulted notice results in an economic a detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the MergerIndemnified Taxes, the Seller shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, 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, the Seller may elect to direct and control, through counsel of its own choosing, any Contest involving any asserted Tax Liability liability with respect to which indemnity may be sought from the Seller pursuant to Section 7.019.11. If the Seller elects to direct a Contest, the Seller shall within thirty (30) 90 days of receipt of the notice of asserted Tax Liability liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the CompanyAenP, the Subsidiaries TEC and the Joint Ventures Electroandes to fully cooperate, at the Seller’s expensecooperate fully, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall may assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate However, in each phase such case, none of such Contest. Neither the Purchaser, the CompanyAenP, TEC or Electroandes may settle or compromise any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period asserted liability without the prior written consent of the other partySeller; provided, which however, that consent may to settlement or compromise shall not be unreasonably withheld. In any such Contestevent, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, participate in any Contest in which the Purchaser assumes controlContest.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company AenP, TEC and the Subsidiaries Electroandes to cooperate, in the defense against or compromise of any claim in any Contest.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pseg Energy Holdings LLC)
Contests. (a) After the Merger Effective TimeClosing, the Purchaser Buyer shall promptly notify the Seller 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 the PurchaserBuyer, its Affiliates, the Company, any Subsidiary Marigold or any Joint Venture subsidiary which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.01Goldcorp USA. Such notice shall contain factual information (to the extent known to the PurchaserBuyer, its Affiliates, the Company, any Subsidiary Marigold or any Joint Venturesubsidiary) describing the asserted Tax Liability 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 Liabilityliability. Any failure by the Purchaser If Buyer fails to give the Seller Goldcorp USA prompt notice of an asserted Tax Liability liability as required by this Section 7.0310.4, then Goldcorp USA shall not limit the have any obligation of the Seller to indemnify the Purchaserfor any loss arising out of such asserted Tax liability, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and but only to the extent that failure to give such failure resulted notice results in an economic a detriment to the SellerGoldcorp USA.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the MergerClosing Date, the Seller Goldcorp USA shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, of such Contest.
(c) With respect to a taxable period that begins prior to the Closing Date and ends after the Closing (a “Straddle PeriodsPeriod”), the Seller Goldcorp USA may elect to direct and control, through counsel of its own choosing, any Contest contest involving any asserted Tax Liability liability with respect to which indemnity may be sought from the Seller pursuant to Section 7.01Goldcorp USA. If the Seller Goldcorp USA elects to direct a Contest, the Seller Goldcorp USA shall within thirty (30) 90 days of receipt of the notice of asserted Tax Liability liability notify the Purchaser Buyer of its intent to do so, and the Purchaser Buyer shall cooperate and shall cause the Company, the Subsidiaries Marigold and the Joint Ventures its Affiliates to fully cooperate, at the SellerGoldcorp USA’s expense, in each phase of such Contest. If the Seller Goldcorp USA elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the PurchaserBuyer, the Company, any Subsidiary Marigold or any Joint Venture shall subsidiary may assume control of such Contest (at the PurchaserBuyer’s expense). The Seller shall fully cooperate However, in each phase such case, none of such Contest. Neither the PurchaserBuyer, the Company, any Subsidiary Marigold or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into subsidiary may settle or compromise any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period asserted liability without the prior written consent of the other partyGoldcorp USA; provided, which however, that consent may to settlement or compromise shall not be unreasonably withheld. In any such Contestevent, the 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. The Purchaser Goldcorp USA may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlContest.
(d) The Purchaser Buyer and the Seller Sellers agree to cooperate, and the Purchaser Buyer agrees to cause the Company and the Subsidiaries Marigold 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 (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 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, (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: (x) Goldcorp USA or its ultimate U.S. parent corporation with which it files a consolidated return for federal income tax purposes shall include the income of Marigold (including any 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 income, and (y) 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 furnish 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, 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
Sources: Purchase and Sale Agreement (Silver Standard Resources Inc)
Contests. (ai) After the Merger Effective TimeClosing, the Purchaser each party shall promptly notify the Seller in writing other party of the proposed assessment any demand, claim or notice of the commencement of any a Tax audit Proceeding received with respect to Taxes for which OpCo or administrative or judicial proceeding or of any demand or claim on Buyer is liable pursuant to this Agreement; provided, however, that a party’s failure to give such notice will not affect the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely other party’s rights to indemnification under this Section 6.1 except to the taxpayer or after extent that the lapse of time, could be grounds for indemnification by the Seller under Section 7.01other party is materially prejudiced thereby. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Ventureknown) describing the asserted Tax Liability in reasonable detail liability and shall include copies of the relevant portion of any notice or other document received from any taxing authority Tax Authority or any other Person 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Sellerliability.
(bii) At OpCo’s request and expense, Buyer shall contest (or cause to be contested) any asserted Pre-Closing Tax Period Tax liability for which OpCo may have an indemnity obligation under Section 6.1(a)(i). If OpCo so elects, 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 the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed.
(iii) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) Proceeding that relates to taxable periods ending on or before a Straddle Period, Buyer shall control the date conduct of the Mergersuch Tax Proceeding, the Seller but OpCo shall have the sole right, 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 direct and control the conduct of, or pursue or settle, such Contestany Tax Proceeding controlled by Buyer hereunder.
(civ) With respect 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 Straddle Periodsthe 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 Seller may elect date a “final determination” to direct and controlsuch effect is made by such Tax Authority. For this purpose, through counsel of its own choosinga “final determination” shall mean a settlement, any Contest involving any asserted compromise, or other agreement with the relevant Tax Liability Authority, a deficiency notice with respect to which indemnity may be sought from the Seller pursuant to Section 7.01. If period for filing a petition with the Seller elects to direct a ContestTax court or the relevant state, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary local or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period foreign tribunal has expired or a subsequent taxable period without the written consent decision of the other party, which consent may any court of competent jurisdiction that is not be unreasonably withheld. In any such Contest, the costs and expenses of the party assuming control of such Contest shall be paid first from any recovery before any payments are made subject to either party. The Purchaser may participate, at its own expense, in any Contest in appeal or as to which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controltime for appeal has expired.
(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
Sources: Equity Purchase Agreement (Health Care Reit Inc /De/)
Contests. (a) After the Merger Effective TimeClosing, the Purchaser shall promptly notify or cause the Company to notify the Seller in writing of the any written notice of a proposed assessment or the commencement of any Tax claim in an audit or administrative or judicial proceeding of the Purchaser or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture Company which, if determined adversely to the taxpayer or after the lapse of timetaxpayer, could would be grounds for indemnification by under this Article VI or could otherwise result in any Tax cost to the Seller Seller; provided, however, that a failure to give such notice will not affect the Purchaser's right to indemnification under Section 7.01. Such notice shall contain factual information (this Article VI except to the extent known to such failure on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture) describing the asserted Tax Liability in reasonable detail and shall include copies part 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 or the Company prejudices the Seller prompt notice by preventing the avoidance of an asserted Tax Liability as required by this Section 7.03, shall not limit the obligation all or a portion of the Seller to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted liability in an economic detriment to the Sellerquestion.
(b) In the case of a Tax an audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date Closing Date, provided that the Seller acknowledge in writing its indemnification obligation liability under Article VI of this Agreement with respect to the potential liability of the MergerCompany as a result of such audit or administrative or judicial proceeding, the Seller shall have the sole right, at its expense, to direct participate in and control the conduct ofof such audit or proceeding; the Purchaser may also participate in any such audit or proceeding and, if the Seller does not assume the defense of any such audit or pursue proceeding, the Purchaser, at its expense, may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or settleproceeding after giving five days' prior written notice to the Seller setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Seller has acknowledged its indemnification obligation are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, such Contestthe Purchaser shall have the right, at its expense, to control the audit or 45 41 proceeding with respect to the latter issues, provided that the Purchaser provides the Seller with a written acknowledgement of the Purchaser's liability.
(c) With respect to Straddle PeriodsNotwithstanding Section 6.04(b), neither 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 Seller elects to direct a Contest, Purchaser nor the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall enter into or cause the Company, the Subsidiaries and the Joint Ventures Company to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or agree to settle or cause the Company to agree to settle any claim pursuant to such any Tax audit or proceeding which would adversely affect the other party for such taxable period year or a any prior or subsequent taxable period year without the written consent of the other party, party which consent may not be unreasonably withheld. In If the Purchaser or the Seller refuses to provide the respective other party with written consent to settle any such Contestclaim, then the costs and expenses of parties shall submit the party assuming control of such Contest shall be paid first from any recovery before any payments are made matter to either party. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, an Independent Firm and the Seller may participate, at its own expense, in any Contest in which Independent Firm shall resolve the issue based on a standard of maximal fairness to both the Purchaser assumes controland the Seller.
(d) The Purchaser and the Seller agree shall cooperate fully, as and to cooperatethe extent reasonably requested by the other party, and in connection with (i) the filing of Returns pursuant to Section 6.03 (including such amended Returns for periods (or portions thereof) ending on or prior to the Closing Date that the Seller may reasonably request the Purchaser agrees to file or cause the Company to file; provided, however, that if in the Purchaser's reasonable judgment the filing of the amended return would be disadvantageous to the Purchaser, the Purchaser may deny the Seller's request and the Subsidiaries parties shall submit the matter to cooperatean Independent Firm and the Independent Firm shall resolve the issue based on a standard of maximal fairness to both the Purchaser and the Seller and (ii) any audit, in the defense against litigation or compromise of any claim in any Contestother proceeding with respect to Taxes.
Appears in 1 contract
Sources: Share Purchase Agreement (Galileo International Inc)
Contests. (a) After Seller shall have the Merger Effective Time, right to control the Purchaser shall promptly notify the Seller in writing of the proposed assessment or the commencement conduct of any Tax audit or administrative or judicial proceeding with respect to any consolidated federal income Tax Return (or of any demand similar combined, consolidated or claim on unitary state income Tax Return) that includes Seller or the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely Companies with respect to the taxpayer or after the lapse of 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 a taxable period of the Seller to indemnify Companies ending on or before the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the SellerClosing Date (a “Pre-Closing Consolidated Audit”).
(b) In the case of a Tax With respect to any audit or administrative or judicial proceeding with respect to Taxes of the Companies (other than a Pre-Closing Consolidated Audit), Purchaser shall promptly notify Seller in writing upon receipt by any of the Companies of a written notice of any audit or administrative or judicial proceeding with respect to Taxes of any of the Companies which Seller may have liability (a “ContestTax Contest Claim”) that relates ); provided, however, no failure or delay by Purchaser to taxable periods ending on provide notice of a Tax Contest Claim shall reduce or before otherwise affect the date obligation of Seller hereunder except to the Merger, extent Seller is actually prejudiced thereby. Purchaser and Seller shall cooperate with each other in the conduct of any Tax Contest Claim. Seller shall have the sole right, at its expense, right to direct and control the conduct ofof any Tax Contest Claim for a period that ends on or 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) days of Purchaser notifying Seller of such Tax Contest Claim, provided if the resolution of such Pre-Closing Tax Claim could reasonably be expected to have an adverse effect on Purchaser or pursue any of the 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 Claim, (ii) Purchaser shall be entitled to participate in any Pre-Closing Tax Claim and (iii) Seller shall not compromise or settlesettle any Pre-Closing Tax Claim without obtaining Purchaser’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. If Seller does not elect to control a Pre-Closing Tax Claim within the time period set forth above, then Purchaser shall be entitled to control all aspects of such Contestclaim.
(c) With respect to any Tax Contest Claim for a period that begins before and ends after the Closing Date (a “Straddle PeriodsTax Claim”), Purchaser shall control such claim, provided that (A) Purchaser shall keep Seller informed regarding the Seller may elect to direct progress and controlsubstantive aspects of such Straddle Tax Claim, 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 Seller elects to direct a Contest, the (B) Seller shall within thirty be entitled to participate in any Straddle Tax Claim and (30C) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the not compromise or settle a Straddle Tax Claim without obtaining Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other partyconsent, which consent may shall not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlconditioned or delayed.
(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. (a) After the Merger Effective TimeClosing, 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, Company or any Subsidiary or any Joint Venture 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. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary Company or any Joint VentureSubsidiary) describing the asserted Tax Liability 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 Liabilityliability. Any failure by If the Purchaser fails to give the Seller prompt notice of an asserted Tax Liability liability as required by this Section 7.03, then the Seller shall not limit the have any obligation of the Seller to indemnify the Purchaserfor any loss arising out of such asserted Tax liability, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and but only to the extent that failure to give such failure resulted notice results in an economic a detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “"Contest”") that relates to taxable periods ending on or before the date of the MergerClosing, the Seller shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, of such Contest, provided that, with respect to Contests that relate solely to the Company and the Subsidiaries, the Seller may not settle or compromise any asserted liability that would materially adversely affect the liability for Taxes of the Purchaser pursuant to Section 7.01(a) without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld.
(c) 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 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 Seller shall within thirty (30) 90 calendar days of receipt of the notice of asserted Tax Liability liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, Company and the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s 's expense, in each phase of such Contest; provided, that the Purchaser may participate at its own expense, in the Contest and, provided, further, that the Seller may not settle or compromise any asserted liability that would adversely affect the liability for Taxes of the Purchaser pursuant to Section 7.01(a) without the prior written consent of Purchaser, which consent shall not be unreasonably withheld. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, Company or any Subsidiary or any Joint Venture shall may assume control of such Contest (at the Purchaser’s 's own expense). The Seller shall fully cooperate However, in each phase such case, none of such Contest. Neither the Purchaser, the Company, Company or any Subsidiary may settle or compromise 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period asserted liability without the prior written consent of the other partySeller; provided, which however, that consent may to settlement or compromise shall not be unreasonably withheld. In any such Contestevent, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlContest.
(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) After the Merger Effective TimeClosing Date, the Purchaser Buyer and Seller shall promptly each notify the Seller other in writing within ten (10) days of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding affecting the Taxes or Tax attributes of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary Company or any Joint Venture whichof 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 taxpayer, or after the lapse of time, could be grounds for indemnification under this Section 10.01 or under Article VIII with respect to Taxes by the Seller under Section 7.01Seller. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, describing any Subsidiary or any Joint Venture) describing the asserted Tax Liability in reasonable detail liability and shall include copies of any notice or other document received from any taxing authority Tax Authority in respect of any such asserted Tax Liabilityliability. Any failure by the Purchaser If either Buyer or Seller fails to give the Seller other party prompt notice of an asserted Tax Liability liability as required by under this Section 7.03Agreement, the failure to give such notification shall not limit affect the obligation of the Seller to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only indemnification provided hereunder except to the extent that the other party shall have been actually prejudiced as a result of such failure resulted in an economic detriment to or the Sellerindemnification obligations are increased as a result of such failure.
(bii) In the case of a Tax an audit or administrative or judicial proceeding (a “Contest”) that relates involving any Taxes or Tax attributes relating to any taxable years or periods ending on or before the date Closing Date or any Straddle Period of the MergerCompany or any of its Subsidiaries, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If audit or proceeding; provided, however, that Buyer may participate in the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control conduct of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for at its own expense and Seller shall not settle any such taxable period audit or a subsequent taxable period proceeding without the written consent of the other partyBuyer, which consent may shall not be unreasonably withheld. , conditioned or delayed.
(iii) In the case of an audit or administrative or judicial proceeding involving any such Contest, Taxes or Tax attributes relating to any taxable years or periods beginning after the costs and expenses Closing Date of the party assuming control Company or any of such Contest its Subsidiaries, Buyer shall be paid first from any recovery before any payments are made to either party. The Purchaser may participatehave the right, at its own 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 Contest in of the Company or any or its Subsidiaries for which the Seller assumes controlwould be liable under Section 10.01(a) or under Article VIII, and the Seller may participate, participate in the conduct of such audit or proceeding at its own expenseexpense and Buyer shall not settle any such audit or proceeding without the consent of Seller, in any Contest in which the Purchaser assumes control.
(d) The Purchaser consent shall not be unreasonably withheld, conditioned or delayed; provided, further, that Seller’s right to participation and the Seller agree consent shall be limited to cooperate, and the Purchaser agrees to cause matters or issues involving the Company and the Subsidiaries to cooperate, in the defense against or compromise of any claim in any Contestits Subsidiaries.
Appears in 1 contract
Contests. (a) After the Merger Effective TimeClosing, 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 Subsidiary or any Joint Venture which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification received by the Purchaser or the Company from any Tax authority or other party with respect to Taxes for which the Seller under is liable pursuant to Section 7.017.1(a). Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Ventureknown) describing the asserted Tax Liability liability in reasonable detail and shall include copies of any notice or other document received from any taxing Tax authority in respect of any such asserted Tax Liabilityliability. Any failure by If the Purchaser fails to give the Seller prompt notice of an asserted Tax Liability liability as required by this Section 7.037.3, shall not limit the obligation of then (i) if the Seller (or its designee) is precluded by the failure to indemnify give prompt notice from contesting the Purchaserasserted Tax liability in both the administrative and judicial forums, and the CompanySeller is materially prejudiced as a result, any Subsidiary or any Joint Venture then the Purchaser shall have sole responsibility for such Tax Liability unless and only to liability or (ii) if the extent that Seller (or its designee) is not precluded from contesting but such failure resulted to give prompt notice results in an economic a detriment to the SellerSeller (or its designee), 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 be reduced by the amount of such detriment.
(b) In the case of a Tax audit The Seller (or administrative or judicial proceeding (a “Contest”its designee) that relates to taxable periods ending on or before the date of the Merger, 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 controlcontrol the conduct, through counsel of its own choosingchoosing and at its own expense, of any Contest audit, claim for refund and administrative or judicial proceeding involving any asserted Tax Liability liability with respect to which indemnity may be sought from the Seller pursuant under Section 7.1(a) (any such audit, claim for refund or proceeding relating to Section 7.01an asserted Tax liability is referred to herein as a "Contest"). If the Seller (or its designee) elects to direct control a Contest, the Seller it shall within thirty (30) 30 calendar days of receipt of the notice of asserted Tax Liability liability notify the Purchaser of its intent to do so, the Seller (or its designee) shall have all rights to settle, compromise and/or concede such asserted liability and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures Company or any of its successors to fully cooperate, at the reasonable expense of the Seller’s expense, in each phase of such Contest; provided, however, that the Seller shall not, other than in good faith based on the merits, enter into any compromise or settlement of such Contest that would result in any Tax detriment to the Purchaser or the Company. If the Seller elects not to direct control the Contest, the Seller shall promptly fails to notify the Purchaser and the Purchaserof its election as herein provided or contests its obligation to indemnify under Section 7.1(a), the CompanyPurchaser or the Company may pay, any Subsidiary compromise or any Joint Venture shall assume control contest, at its own expense (to be reimbursed by the Seller to the extent of reasonable third-party expenses), such Contest (at asserted liability. However, in such case, neither the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, Purchaser nor the Seller, on Company may settle or compromise any asserted liability over the other hand, shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent objection of the other partySeller; provided, which however, that consent may to settlement or compromise shall not be unreasonably withheld. In any such Contestevent, the 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. The Purchaser Seller (or its designee) may 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 of its successors promptly to empower (by power of attorney and such other documentation as may be appropriate) such representatives of the Seller (or its designee) as it may designate to represent the Purchaser, the Company or any of their successors in the Contest in insofar as the Contest involves an asserted Tax liability for which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlwould be liable under Section 7.1(a).
(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
Sources: Stock Purchase Agreement (Information Holdings Inc)
Contests. (a) After the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing of the proposed assessment If any Governmental Authority issues to ▇▇▇▇▇▇▇▇ 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 Subsidiary or any Joint Venture 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. Such Company a written 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do soaudit, 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 Taxes or the filing of a Tax Return for a Pre-Closing Tax Period or a Straddle Period (a “Tax Claim”), Buyer shall notify Seller of its receipt of such Tax Claim within ten (10) Business Days following receipt, provided however, that the failure of the Buyer to notify Seller of its receipt of a 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 and any other matter with respect to a Pre-Closing Tax Period of ▇▇▇▇▇▇▇▇ or the Purchaser shall cooperate and shall cause the CompanyCompany (a “Seller’s Tax Contest”), the Subsidiaries and the Joint Ventures to fully cooperateprovided that Buyer, at its sole cost and expense, shall have the right to participate in any Seller’s expense, in each phase of such Contest. If the Seller elects Tax Contest that does not to direct the Contest, involve income Taxes and provided further that the Seller shall promptly notify provide the Purchaser Buyer with a copy of the final resolution of any Seller’s Tax Contest and the Purchaserany 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 Subsidiary or any Joint Venture shall assume control of such 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 Purchaserright to participate in any Buyer’s expense)Tax Contest that relates to a Straddle Period Return. The Seller party controlling a Tax Claim described in the preceding sentence shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or not agree to settle any claim pursuant to such audit or proceeding which would adversely Tax Claim if such settlement could affect the Tax liability of the other party for such taxable period or a subsequent taxable period without the written consent of the such other party, which consent may shall not be unreasonably withheld. In , conditioned or delayed, provided that if any such Contestparty (the “First Party”) shall reasonably withhold consent for a settlement, the costs and expenses other party (the “Second Party”) shall be entitled to enter into such settlement without the consent of the party assuming control 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 Contest shall be paid first from any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlsettlement.
(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
Sources: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Contests. The Sellers and their duly appointed representatives shall have the exclusive authority to control any audit or examination by any taxing authority, to initiate any claim for refund, to amend any Tax return and to contest, resolve and defend against any assessment for additional Taxes, or other adjustment of Taxes of or relating to any liability of the Target or its Subsidiaries for Taxes reflected on any Tax returns covering any Pre-Closing Periods; PROVIDED, HOWEVER, that (a) After neither the Merger Effective TimeSellers nor any of their duly appointed representatives shall, 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 Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the prior written consent of the other partyBuyer, which consent may shall not be unreasonably withheld, file any claim for refund, amend any Tax return or enter into any settlement of any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Buyer or any of its Affiliates for any Tax period beginning after the Closing Date (a "POST-CLOSING PERIOD") or any portion of an Overlap Period beginning after the Closing Date, and (b) neither the Sellers nor any of their duly appointed shall, without the prior consent of the Buyer, which consent shall not unreasonably be withheld, enter into any settlement of any contest or otherwise compromise any issue that would increase any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Buyer of any amount under Section 9.3 unless the Sellers shall have agreed to indemnify the Buyer for payment of such Taxes. In Buyer and its duly appointed representatives shall have the exclusive authority to control any such Contestaudit or other proceeding relating to Taxes for any taxable year or other the Closing Date; PROVIDED, HOWEVER, that (a) neither Buyer, the costs and expenses Target nor any of their duly appointed representatives shall, without the prior written consent of the party assuming control Sellers, which consent shall not be unreasonably withheld, enter into any settlement of such Contest any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Sellers or any of their affiliates for any Pre-Closing Period or any portion of the Overlap Period ending on the Closing Date, and (b) neither Buyer, the Target nor any of their duly appointed representatives shall, without the prior consent of the Sellers, which consent shall not unreasonably be withheld, enter into any settlement of any contest or otherwise compromise any issue that would reduce any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Sellers of any amount under Section 9.3 unless Buyer shall have waived or caused to be waived for itself and the Target any right to indemnification for Taxes from the Sellers. The Sellers shall be paid first from entitled to any recovery before Tax refund relating to the Target and its Subsidiaries to the extent such Tax refund relates to any payments are made to either party. The Purchaser may participatePre-Closing Period or any portion of the Overlap Period ending on the Closing Date, at its own expense, in any Contest unless such refund has been recorded as an Asset on the Closing Balance Sheet in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlcase Buyer shall be entitled thereto.
(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. (a) After 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 Subsidiary Upon receipt by Buyer or any Joint Venture which, if determined adversely to the taxpayer or after the lapse Affiliate of 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 Buyer of any notice of any Audit with respect to Excluded Taxes or any other document received from Taxes for which the Sellers may be liable hereunder (any taxing authority in respect such Audit, a "TAX MATTER"), Buyer will notify the Sellers of any such asserted Tax LiabilityMatter within (x) three Business Days if, under applicable Law, the written response to such Tax Matter is required within 20 days after the receipt by Buyer of such notice of such Tax Matter, and (y) ten calendar days in all other cases. Any The Sellers may, at their expense, participate in and, upon notice to Buyer, assume the defense of any such Tax Matter. Upon receipt of such notice from Sellers, Buyer will grant to Sellers a special and limited power of attorney in favor of Sellers, duly authenticated by a Mexican notary public, for lawsuits and collections to permit Sellers to properly defend or contest such Tax Matter. No delay in or failure by the Purchaser Buyer to give the Seller prompt notice of an asserted such Tax Liability as required by Matter or to deliver such power of attorney pursuant to this Section 7.03, shall not limit 8.3(d) will alter or relieve the Sellers of their obligation of the Seller to indemnify the PurchaserBuyer, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only except to the extent that the Sellers are prejudiced thereby or are prevented or in any way restricted from being able to assume the defense of such failure resulted in an economic detriment Tax Matter. If the Sellers assume such defense, the Sellers will have the authority, with respect to any Tax Matter, to represent the Seller.
(b) In interests of the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or applicable Purchased Subsidiary before the date of the Merger, the Seller shall relevant Taxing Authority and will have the sole right, at its expense, right to direct and control the conduct defense, compromise or other resolution of any such Tax Matter, including responding to inquiries and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or pursue or settlerelating to, such Contest.
(c) With respect to Straddle PeriodsTax Matter; provided, however, 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects Sellers will not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any settlement of or otherwise compromise or agree any such Tax Matter to settle any claim pursuant the extent that it could reasonably be expected to such audit or proceeding which would adversely affect the other party Tax liability of any Purchased Subsidiary for such taxable a period (or a subsequent taxable period portion thereof) beginning after the Closing Date without the prior written consent of the other partyBuyer, which consent may shall not be unreasonably withheld. In any such Contest, Buyer has the costs and expenses of right (but not the party assuming control duty) to participate in the defense of such Contest shall be paid first from any recovery before any payments are made Tax Matter and to either party. The Purchaser may participateemploy counsel, at its own expense, separate from the counsel employed by the Sellers. If Buyer elects to participate in the defense of any Tax Matter, then (i) Buyer shall be entitled to (A) without in any Contest way limiting or affecting Sellers' right to assume the defense of such Tax Matter, participate fully in which the Seller assumes controlconduct of such Tax Matter, including participating in all conferences and attending all meetings with the relevant authorities, and (B) consult with the Seller may participateSellers, at its own expense, regarding any such Tax Matter, and Sellers shall consider in good faith any suggestions made by Buyer, (ii) the Sellers shall provide Buyer with a copy of all documents (or portions thereof) relating to such Tax Matter and (iii) the Sellers will not enter into any settlement of or otherwise compromise any such Tax Matter to the extent that it could reasonably be expected to adversely affect the Tax liability of any Purchased Subsidiary for a period (or portion thereof) beginning after the Closing Date without the prior written consent of Buyer, which consent shall not be unreasonably withheld. The Sellers will allow Buyer to consult with Sellers regarding the conduct of or positions taken in any Contest in which the Purchaser assumes controlsuch proceeding.
(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. (a) After the Merger Effective TimeClosing, 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, or the Company, any Subsidiary Company or any Joint Venture the Company Subsidiaries which, if determined adversely to the taxpayer or after the lapse of time, could result in any Tax liability for the Seller or be grounds for indemnification by the Seller or the Principal Seller Members under Section 7.01Article IX. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, or the Company, any Subsidiary or any Joint Venture) describing the asserted Tax Liability liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority Taxing Authority in respect of any such asserted Tax Liabilityliability. Any failure by the If Purchaser fails to give the Seller prompt notice of an asserted Tax Liability liability as required by this Section 7.03, then the Seller and the Principal Seller Members shall not limit the have any obligation of the Seller to indemnify the Purchaserfor any loss arising out of such asserted Tax liability, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and but only to the extent that failure to give such failure resulted notice results in an economic a detriment to the SellerSeller and Principal Seller Members.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the MergerClosing Date, the Seller shall have the sole right, at its the Seller’s expense, to direct and control the conduct of, or pursue or settle, of such Contest.
(c) . 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 liability with respect to which indemnity may be sought from the Seller or the Principal Seller Members pursuant to Section 7.01. Article IX.
(c) If the Seller elects to direct a Contest, the Seller shall within thirty (30) calendar days of receipt of the notice of asserted Tax Liability liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures Company to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, Purchaser or the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall Company may assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate However, in each phase of such Contest. Neither the Purchasercase, the Company, any Subsidiary or any Joint Venture, on the one hand, neither Purchaser nor the Seller, on the other hand, shall enter into Company may settle or compromise any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period asserted liability without the prior written consent of the other partySeller; provided, which however, that consent may to settlement or compromise shall not be unreasonably withheld. In If the Seller does not direct and control any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own the Seller’s expense, in any Contest in which the Purchaser assumes controlsuch Contest.
(d) The Purchaser Purchaser, the Seller and the Principal Seller Members agree to cooperate, and the Purchaser agrees to cause the Company and the Company Subsidiaries to cooperate, in the defense against or compromise of any claim in any Contest.
(e) In the event of a conflict between the procedures set forth in this Section 7.03 and those set forth in Article IX, the procedures of this Section 7.03 shall govern.
Appears in 1 contract
Contests. (a) After the Merger Effective TimeClosing, the Purchaser shall promptly notify the Seller 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 the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture Acquired Company which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by against the Seller Stockholders under Section 7.01Article 8. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint VentureAcquired Company) describing the asserted Tax Liability liability in reasonable detail and shall include copies of any notice or other document received from any taxing Tax authority in respect of any such asserted Tax Liabilityliability. Any The failure by the of Purchaser to give the Seller Representative prompt notice of an asserted Tax Liability liability as required by this Section 7.03, 7.2 shall not limit relieve the Stockholders of any obligation of the Seller to indemnify for any loss arising out of such asserted Tax liability, except if the Purchaser, the Company, any Subsidiary or any Joint Venture for Stockholders shall have been actually and materially prejudiced as a result of such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Sellerfailure.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates With respect to taxable periods ending that include but do not end on or before the date of the MergerClosing, 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 Purchaser may elect to direct and control, through counsel of its own choosing, any Contest involving any asserted Tax Liability liability with respect to which indemnity may be sought from the Seller Stockholders pursuant to Section 7.01Article 8. If the Seller Purchaser elects to direct a Contest, the Seller Purchaser shall within thirty ninety (3090) calendar days of receipt of the notice of asserted Tax Liability liability notify the Purchaser Representative of its intent to do so. In such case, the Representative may participate at its own expense in the Contest and Purchaser shall not settle or compromise any asserted liability without prior written consent of the Representative, which consent shall not be unreasonably withheld. If Purchaser elects not to direct the Contest, 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 Purchaser applicable Acquired Companies shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the SellerRepresentative’s expense, in each phase of such Contest. If the Seller elects not to direct the ContestHowever, in such case, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, Representative may not settle or compromise any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period asserted liability without the prior written consent of the other partyPurchaser; provided, which however, that consent may to settlement or compromise shall not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(dc) The Purchaser and the Seller Representative agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries 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) After In the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing case of the proposed assessment or the commencement of any Tax an audit or administrative or judicial proceeding that relates to periods ending on or of any demand before the Closing Date or claim on for which the Purchaser, its AffiliatesPurchaser may seek indemnity from the Sellers, the CompanySellers shall have the right, any Subsidiary at their expense, to participate in and control the conduct of such audit or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and proceeding but only to the extent that such failure resulted in an economic detriment 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 Seller.
Closing Date. The Sellers shall keep the Purchaser fully informed of the progress of any such audit or proceeding and, if it appears in the sole discretion of the Purchaser, that such audit or proceeding may reasonably be expected to adversely affect the Purchaser or the Company, the Purchaser also may participate in any such audit or proceeding. If the Sellers do not assume the defense of any such audit or proceeding promptly, the Purchaser may defend and settle the same (bfor the Sellers' account and at the Sellers' expense) in such manner as it may deem appropriate. In the case of event that a Tax audit or administrative or judicial potential adjustment as to which the Sellers would be liable is present in the same proceeding (as a “Contest”) that relates to taxable periods ending on or before potential adjustment for which the date of the MergerPurchaser would be liable, the Seller Purchaser shall have the sole right, at its expense, to direct and control the conduct ofaudit or proceeding with respect to the latter potential adjustment.
(b) With respect to a potential adjustment for which both the Sellers and the Purchaser or the Company could be liable, or pursue which involves an issue that recurs for any period ending after the Closing Date (whether or settlenot the subject of audit at such time), such Contest(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 periods. 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 circumstances in which separate issues are otherwise controlled hereunder by the Purchaser and the Sellers.
(c) With respect to Straddle PeriodsExcept as provided in Section 8.4(a) above, 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify neither the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, Sellers shall enter into any compromise or agree to settle any claim pursuant to such any Tax audit or proceeding which would adversely affect the other party party, or result in a material benefit to that party, for such taxable period year or a subsequent taxable period year without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlwithheld or delayed.
(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. (a) After In the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing case of the proposed assessment or the commencement of any Tax an audit or administrative or judicial proceeding that relates to periods ending on or of any demand or claim on before the Purchaser, its AffiliatesBalance Sheet Date for which Purchaser may seek indemnity from Sellers, the Company, any Subsidiary Sellers shall have the right to participate in and control the conduct of such audit or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and proceeding but only to the extent that such failure resulted in an economic detriment audit or proceeding relates solely 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 Seller.
Balance Sheet Date. The Sellers shall keep the Purchaser fully informed of the progress of any such audit or proceeding and, if it appears in the sole discretion of the Purchaser, that such audit or proceeding may reasonably be expected to adversely affect the Purchaser or any Company, the Purchaser also may participate in any such audit or proceeding. If the Sellers do not assume the defense of any such audit or proceeding promptly, the Purchaser may defend and settle the same (bfor the Sellers' account and at Sellers' expense) in such manner as it may deem appropriate. In the case of event that a Tax audit or administrative or judicial potential adjustment as to which the Sellers would be liable is present in the same proceeding (as a “Contest”) that relates to taxable periods ending on or before potential adjustment for which the date of the MergerPurchaser would be liable, the Seller Purchaser shall have the sole right, at its expense, to direct and control the conduct ofaudit or proceeding with respect to the latter potential adjustment.
(b) With respect to a potential adjustment for which both the Sellers and the Purchaser or any Company could be liable, or pursue which involves an issue that recurs for any period ending after the Balance Sheet Date (whether or settlenot the subject of audit at such time), such Contest(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 periods. 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 circumstances in which separate issues are otherwise controlled hereunder by the Purchaser and the Sellers.
(c) With respect to Straddle PeriodsExcept as provided in Section 8.4(a) above, 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify neither the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, Sellers shall enter into any compromise or agree to settle any claim pursuant to such any Tax audit or proceeding which would adversely affect the other party party, or result in a material benefit to that party, for such taxable period year or a subsequent taxable period year without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlwithheld or delayed.
(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. (a) After the Merger Effective TimeClosing, the Purchaser Buyer shall promptly notify the Seller in writing of the any written notice of a proposed assessment or the commencement of any Tax assessment, audit or administrative claim with respect to any inquiry, assessment, contest, proceeding or judicial proceeding litigation (a "Contest") of Buyer or Seller or of any demand or claim on of the Purchaser, its Affiliates, Company and the Company, any Subsidiary or any Joint Venture Subsidiaries which, if determined adversely to the taxpayer or after the lapse of timetaxpayer, could would 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the SellerArticle VIII.
(b) In For all Contests for which the Seller alone has an indemnification obligation under Section 8.1, Seller shall control all such Contests in connection therewith. Prior to the Closing Date, Seller shall control all Contests relating to the Company and the Subsidiaries. After the Closing Date, in the case of a Tax audit or administrative or judicial proceeding (a “Contest”) Contest that relates to a non-Consolidated Return (or any item relating thereto or reported thereon) for a taxable period ending on or before, or that includes, the Closing Date, Seller shall have the right at its expense to participate in and control the conduct of such Contest, and for all taxable periods thereafter, Buyer shall control such Contests. If Seller does not assume the defense of any such Contest for a taxable period ending on or before the date Closing Date, Buyer may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such Contest after giving 30 days= prior written notice to Seller setting forth the terms and conditions of settlement. In the Mergerevent of a Contest covered by the second sentence of this paragraph, the that involves issues relating to a potential adjustment for which Seller has liability that are required to be dealt with in a proceeding that also involves separate issues relating to a potential adjustment for which Buyer would be liable, Buyer shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, such ContestContest but only with respect to the latter issues.
(c) With respect to Straddle Periods, the Seller may elect to direct Buyer 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser Buyer 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
Sources: Stock Purchase Agreement
Contests. (ai) After the Merger Effective Time, the Purchaser Seller and Buyer shall promptly notify the Seller other Party in writing within fourteen (14) days or such shorter period as may be required thereby of the proposed assessment receipt by it or the commencement any of its Affiliates of written notice of any pending or threatened Tax examination, audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Tax Contest”) that could 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 copy of the relevant portion of any correspondence received from the taxing authority. If the recipient of such notice of a Tax Contest fails to provide such timely notice to such other Party, it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Contest, but only to the extent, if any, that such failure or delay shall have adversely affected the indemnifying Party’s ability to defend against, settle, or satisfy any action, suit or proceeding against it, or any damage, loss, claim, or demand for which the indemnified Party is entitled to indemnification hereunder, and the indemnifying Party’s indemnity obligations shall be reduced to the extent of any Tax or other liability incurred as a result of the delay or failure to receive such timely notice.
(ii) If a Tax Contest relates to taxable periods ending on or before any Taxes for which Seller is liable in full hereunder, Seller shall at its expense control the date defense and settlement of such Tax Contest. If such Tax Contest relates to any Taxes for which Buyer is liable in full hereunder, Buyer shall at its own expense control the defense and settlement of such Tax Contest. The Party not in control of the Merger, the Seller defense shall have the sole right, 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 direct Taxes for which both are liable hereunder, and control the conduct of, or pursue or settle, fees and expenses related to such Contestrepresentation shall be paid equally by Buyer and Seller.
(ciii) With respect Notwithstanding anything to Straddle Periodsthe 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 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 Seller elects to direct a Contest, the Seller controlling Party shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do sonot, and neither Party in the Purchaser shall cooperate and shall cause the Companycase of joint control shall, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period final settlement without the written consent of the other partyParty, which consent may shall not be unreasonably withheld. In Where a Party reasonably withholds its consent to any such Contestfinal settlement, the 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. The Purchaser that Party may participatecontinue or initiate further proceedings, at its own expense, in any Contest in which and the Seller assumes controlliability 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 Seller may participate, at its own expense, non-consenting Party shall indemnify the consenting Party for any liability in any Contest in which excess of liability that would have resulted from the Purchaser assumes controlproposed final settlement.
(div) The Purchaser 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 Seller agree Closing Date, Buyer shall promptly pay to cooperateSeller, 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 the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, by assuming that such reduction in Income Taxes will occur in the defense against year or compromise years of any claim in any Contestreversal.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mdu Resources Group Inc)
Contests. (ai) After the Merger Effective TimeClosing, the Purchaser Denbury shall promptly notify the Seller Matrix Common Shareholders 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 PurchaserDenbury, its Affiliates, the Company, any Subsidiary Matrix or any Joint Venture Affiliate which, if determined adversely to the taxpayer or after the lapse of time, could would be grounds for indemnification by the Seller under Section 7.01Matrix Common Shareholders. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint VentureDenbury) describing the asserted Tax Liability liability in reasonable detail and shall include copies of any notice or other document received from any taxing Taxing authority in respect of any such asserted Tax Liabilityliability. Any failure by the Purchaser If Denbury fails to give the Seller Matrix Common Shareholders prompt notice of an asserted Tax Liability as required liability, then (i) if the Matrix Common Shareholders are precluded by this Section 7.03the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, the Matrix Common Shareholders shall not limit the have any obligation of the Seller to indemnify for any an increase in a Tax liability allocable to the PurchaserMatrix Common Shareholders as a result of such proceeding, and (ii) if the CompanyMatrix 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 Subsidiary or any Joint Venture for 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 unless and only liability allocable to the Matrix Common Shareholders that was the result of Denbury's failure to give prompt notice to the Matrix Common Shareholders. The failure to give such notice on a timely basis shall not affect the indemnification provisions provided herein except to the extent that the Matrix Common Shareholders demonstrate they have been actually prejudiced as a result of such failure and such prejudice resulted in an economic detriment increase in the Tax liability allocable to the SellerMatrix Common Shareholders.
(bii) In the case of a Tax audit 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”) that relates to taxable periods ending on or before the date of the Merger, 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 "). The Matrix Common Shareholders may elect to direct and controldirect, through counsel of its their own choosingchoosing and at their own expense, any Contest of a Pre-Closing Return involving any asserted Tax Liability liability with respect to which indemnity may be sought from the Seller pursuant to Section 7.01Matrix Common Shareholders. If the Seller elects Matrix Common Shareholders elect to direct the Contest of an asserted Tax liability of a ContestPre-Closing Return, the Seller shall they shall, within thirty (30) calendar days of receipt of the notice of asserted Tax Liability liability, notify the Purchaser Denbury of its their intent to do so, so and the Purchaser Denbury shall cooperate and shall cause the Company, the Matrix and Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects 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 contest, at its expense, such asserted liability. Neither Denbury nor the Matrix Common Shareholders may settle or compromise any Contest involving any asserted liability with respect to which indemnity may be sought from the Matrix Common Shareholders over the objection of the parties not directing the Contest, the Seller provided, however, that consent to settlement or compromise shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contestevent, both Denbury and the 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. The Purchaser Matrix Common Shareholders may participate, at its their own expense, in any Contest in involving an asserted Tax liability with respect to which indemnity may be sought from the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlMatrix Common Shareholders.
(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. (a) After the Merger Effective TimeIf a party receives notice of any proposed claim, the Purchaser shall promptly notify the Seller in writing of the proposed assessment assessment, deficiency, review, examination or the commencement of any Tax audit or administrative or judicial proceeding or any other claim relating to a Pre-Closing Tax Period (“Tax Contest”) with respect to Taxes of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely such party shall promptly provide written notice thereof to the taxpayer other party or after parties hereto; provided, however, that the lapse of time, could be grounds for indemnification by the Seller under Section 7.01. Such failure to provide such notice shall contain factual information (to not release 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 party 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 its obligations under this Section 7.03Article VI, shall not limit the obligation of the Seller to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only except to the extent that such failure resulted other party is materially prejudiced thereby. Such notice shall specify in an economic detriment reasonable detail the basis for and other factual information with respect to such Tax Contest and shall include a copy of the Sellerrelevant portion of any correspondence or document received from the relevant taxing authority.
(b) In the case of a Tax audit or administrative or judicial proceeding (Contest of the Company relating solely to a “Contest”) that relates to taxable periods Tax period ending on or before the date of the MergerClosing Date, the Seller Seller’ Representative shall have the right to assume the control of such Tax Context (at the sole right, cost and expense of the Sellers) by delivering a written notice (the “Tax Control Notice”) to the Buyers within twenty (20) days from the delivery of a notice by Buyers or the Company to Sellers’ Representative concerning the commencement of such Tax Contest. The Tax Control Notice delivered by Sellers’ Representative shall include a statement affirming the responsibility of the Sellers to indemnify the Buyers and the Company from and against any Losses relating to the applicable Tax Contest in accordance with the provisions of this Agreement and shall identify a reputable Tax counsel to be used by Sellers’ Representative (at its the Sellers’ sole cost and expense, ) to direct control such Tax Contests. If Sellers’ Representative elects to assume and control the conduct ofdefense of such Tax Contest, the Sellers’ Representative shall (i) not settle or pursue compromise (or settletake other actions with respect to) any Tax Contest without the prior written consent of the Buyers, (ii) keep the Buyers reasonably informed of all material developments and events relating to such ContestTax Contest (including promptly forwarding copies to the Buyers of any related correspondence, and shall provide the Buyer with an opportunity to review and comment on any material correspondence before the Sellers’ Representative sends such correspondence to any Taxing Authority), (iii) consult with the Buyers in good faith in connection with the defense or prosecution of any such Tax Contest and (iv) provide such cooperation and information as the Buyers shall reasonably request, and the Buyers shall have the right to participate in (but not control) the defense of such Tax Contest (including participating in any discussions with the applicable Governmental Authorities regarding such Tax Contests).
(c) With respect to Straddle Periods, the Seller may elect to direct and control, through counsel of its own choosing, In connection with any Tax Contest involving any asserted Tax Liability governed by Section 6.06(b) with respect to which indemnity may be sought from the Seller pursuant Sellers’ Representative either (x) does not timely elect to control such Tax Contest in compliance with the provisions of Section 7.01. If 6.06(b) or (y) fails to diligently defend such Tax Contest in compliance with the Seller elects to direct a Contestprovisions of Section 6.06(b), the Seller Buyers shall within thirty have the right (30but no obligation) days of receipt of to assume the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Tax Contest subject to the provisions of Section 6.06(d) (at and the Purchaser’s expense). The Seller Sellers shall fully cooperate in each phase of such Contest. Neither reimburse the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party Buyers for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the all reasonable costs and expenses incurred by the Buyers relating to a Tax Contest).
(d) In the case of a Tax Contest of the party assuming control Company which (x) relates to a Straddle Period (y) does not relate solely to a Tax period ending on or before the Closing Date, or (y), which the Buyers elect to assume pursuant to the provisions of this Section 6.06(d), the Buyers shall have the right to control, at their own expense, such Tax Contest; provided, however, that (i) the Buyers shall provide the Sellers’ Representative with a timely and reasonably detailed account of each stage of such Tax Contest, (ii) the Buyers shall defend such Tax Contest diligently and in good faith, (iii) the Sellers’ Representative shall be paid first from any recovery before any payments are made entitled to either party. The Purchaser may participateparticipate in such Tax Contest, at its own expense, in any if such Tax Contest in which could reasonably be expected to have an adverse impact on the Seller assumes controlSellers, and (iv) the Seller may participateBuyers shall not settle, at its own expensecompromise or abandon any such Tax Contest without obtaining the prior written consent of the Sellers’ Representative if such settlement, in any Contest in compromise or abandonment could reasonably be expected to have an adverse impact on the Sellers (which the Purchaser assumes controlconsent shall not be unreasonably withheld, conditioned or delayed).
(de) For the avoidance of doubt, The Purchaser Buyers shall have the right to control (and the Seller agree Sellers' Representative shall have no right to cooperate, and the Purchaser agrees participate in) any Tax Contest with respect to cause the Company and the Subsidiaries to cooperate, in the defense against or compromise of for any claim in any ContestPost-Closing Tax Period.
Appears in 1 contract
Contests. (a) After the Merger Effective TimeClosing, 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 Subsidiary or any Joint Venture A. B. Dick which, if determined adversely to the taxpayer or after the lapse of time, could would be grounds for indemnification by the Seller under Section 7.016.01. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint VentureA. B. Dick) describing the asserted Tax Liability 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 Liabilityliability. Any failure by the If Purchaser fails to give the Seller prompt notice of an asserted Tax Liability liability as required by this Section 7.036.03, then (i) if Seller is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, Seller shall not limit the have any obligation of the Seller to indemnify the Purchaserfor any Loss arising out of such asserted Tax liability, the Companyand (ii) if Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to Seller, any Subsidiary or any Joint Venture for amount which Seller is otherwise required to pay Purchaser pursuant to Section 6.01 with respect to such Tax Liability unless and only to liability shall be reduced by the extent that amount of such failure resulted in an economic detriment to the Sellerdetriment.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 counsel of its own choosingchoosing and at its own expense, any Contest audit, claim for refund and administrative or judicial proceeding involving any asserted Tax Liability liability with respect to which indemnity may be sought from the Seller pursuant under Section 6.01 (any such audit, claim for refund or proceeding relating to Section 7.01an asserted Tax liability is referred to herein as a "Contest"). If the Seller elects to direct control a Contest, the Seller shall it shall, within thirty (30) 30 calendar days of receipt of the notice of asserted Tax Liability liability, notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures its Affiliates to fully cooperate, at the expense of Seller’s expense, in each phase of such Contest. If the Seller elects not to direct control the Contest, the Seller shall promptly fails to notify the Purchaser and the Purchaser, the Company, any Subsidiary of its election as herein provided or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or agree contests its obligation to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(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.indemnify under Section 6.01,
Appears in 1 contract
Contests. (aIf any claim or demand for Taxes in respect of which indemnity may be sought pursuant to Section 5.5(c) After hereof is asserted in writing against Buyer, any of its Affiliates or, effective upon the Merger Effective TimeClosing, the Purchaser Company or the Subsidiary, or if a written notice of audit by a Tax authority of a Tax period of the Company or the Subsidiary ending on or before the Closing Date is received by Buyer, any of its Affiliates or, effective upon the Closing, the Company or the Subsidiary, Buyer shall promptly notify the Seller in writing Shareholders’ Representative of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any such claim, demand or claim on notice within ten (10) days of receipt thereof and shall give the PurchaserShareholders’ Representative such information with respect thereto as the Shareholders’ Representative may reasonably request; provided, however, that failure by Buyer to comply with these provisions shall not affect the rights to indemnification hereunder of Buyer, any of its Affiliates, the Company, any Company or the Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only except to the extent that such failure resulted materially impairs the ability of the Shareholders’ Representative to contest such tax liabilities. The Sellers may discharge, at any time, their indemnification obligation under Section 5.5(c) hereof by paying Buyer the amount payable pursuant to Section 5.5(c) hereof, calculated on the date of such payment. The Shareholders’ Representative may, at Sellers’ own expense, participate in an economic detriment to the Seller.
defense of any such claim, suit, action, litigation or proceeding (b) including any Tax audit). In the case of a Tax audit any claim or administrative or judicial proceeding (a “Contest”) demand for Taxes that relates to taxable periods affects the liability of neither the Company nor the Subsidiary for Taxes for any tax period ending on or before after the date of the MergerClosing Date, the Seller Shareholders’ Representative may, upon notice to Buyer and at Sellers’ own expense, assume the defense of such proceeding. If the Shareholders’ Representative assumes such defense Buyer shall have the sole right, at its expense, right (but not the duty) to direct participate in the defense thereof 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participateemploy counsel, at its own expense, in separate from the counsel employed by the Shareholders’ Representative. Whether or not the Shareholders’ Representative chooses to defend or prosecute any Contest in which the Seller assumes controlclaim, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, all parties hereto shall cooperate in the defense against or compromise of any claim in any Contestprosecution thereof.
Appears in 1 contract
Contests. (a) After the Merger Effective TimeClosing, the Purchaser each party shall promptly notify the Seller other party 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, other party or its Affiliates, the Company, any Subsidiary or any Joint Venture Affiliates 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. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venturesuch party) describing the asserted Tax Liability 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 Liabilityliability. Any failure by the Purchaser If either party fails to give the Seller other party prompt notice of an asserted Tax Liability liability as required by this Section 7.03, then such party shall not limit the have any obligation of the Seller to indemnify the Purchaserfor any loss arising out of such asserted Tax liability, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and but only to the extent that failure to give such failure resulted notice results in an economic a detriment to the Sellersuch party.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the MergerClosing, the Seller shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, of such Contest; provided, however, that the Seller shall not settle or compromise any asserted liability with respect to any such Contest without the prior written consent of the 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 withheld or delayed.
(c) 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 liability with respect to which indemnity may be sought from the Seller pursuant to Section 7.017.01 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 a such Contest, the Seller shall within thirty (30) 60 days of receipt of the notice of asserted Tax Liability liability notify the Purchaser of its intent to do so, and the Purchaser shall reasonably cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures Companies to fully 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 Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall may assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither If the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the costs and expenses of the party assuming Purchaser assumes control of such Contest shall be paid first from any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, in any Contest in which (whether because the Seller assumes controlelects not to assume control or because it is not entitled to control such Contest), and then the Seller may participate, at its own expense, in the Contest. Neither the Seller nor the Purchaser may settle or compromise any asserted liability with respect to any Contest in governed by this Section 7.03(c) without prior written consent of the other party, which the Purchaser assumes controlshall not be unreasonably withheld or delayed.
(d) The Purchaser and the Seller agree to reasonably cooperate, and the Purchaser agrees agree to cause the Company and the Subsidiaries their Affiliates to reasonably cooperate, in the defense against or compromise of any claim in any Contest.
Appears in 1 contract
Contests. (a) After 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 Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case event any Governmental Authority determines that Distribution Provider’s receipt of a Tax audit payments or administrative or judicial proceeding (a “Contest”) property constitutes income that relates is subject to taxable periods ending on or before the date of the Mergertaxation, the Seller Distribution Provider shall have the sole rightnotify Interconnection Customer, at its expensein writing, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days Calendar Days of receipt receiving notification of such determination by a Governmental Authority. Upon the timely written request by Interconnection Customer and at Interconnection Customer's sole expense, Distribution Provider may appeal, protest, seek abatement of, or otherwise oppose such determination. Upon Interconnection Customer's written request and sole expense, Distribution Provider may file a claim for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such a determination. Distribution Provider reserves the right to make all decisions with regard to the prosecution of such appeal, protest, abatement or other contest, including the selection of counsel and compromise or settlement of the notice claim, but Distribution Provider shall keep Interconnection Customer informed, shall consider in good faith suggestions from Interconnection Customer about the conduct of asserted Tax Liability notify the Purchaser of its intent to do socontest, and shall 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 appeal, protest, abatement or other contest. At any time during the Purchaser contest, Distribution Provider may agree to a settlement either with Interconnection Customer's consent or after obtaining written advice from nationally-recognized tax counsel, selected by Distribution Provider, but reasonably acceptable to Interconnection Customer, that the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection Customer's obligation shall cooperate and shall cause be based on the Companyamount of the settlement agreed to by Interconnection Customer, or if a higher amount, so much of the Subsidiaries and settlement that is supported by the Joint Ventures to fully cooperate, at written advice from nationally- recognized tax counsel selected under the Seller’s expense, in each phase terms of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense)preceding sentence. The Seller settlement amount shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, be calculated on a fully-grossed-up basis to cover any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent related cost consequences of the other party, which current tax liability. Any settlement without Interconnection Customer's consent may not be unreasonably withheld. In any or such Contest, the costs and expenses of the party assuming control of such Contest shall be paid first written advice will relieve Interconnection Customer from any recovery before any payments are made obligation to either party. The Purchaser may participate, indemnify Distribution Provider for the tax at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, issue in the defense against or compromise of any claim in any Contestcontest.
Appears in 1 contract
Sources: Service Agreement for Wholesale Distribution Service
Contests. (a) After the Merger Effective Time, the Purchaser shall promptly notify the inform Seller in writing of the commencement of any audit, examination or proceeding (“Tax Contest”) relating in whole or in part to Taxes for which Seller is responsible hereunder within ten (10) days of its receipt of any notice of deficiency, proposed assessment adjustment, assessment, audit, examination or other administrative or court proceeding, suit, dispute, or other claim in which a Taxing Authority makes or proposes to make a Tax adjustment that could result in an indemnity payment pursuant to Article VII or Section 9.03 hereof. Seller, at its option and 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 affect the Tax liability of Purchaser or any of the Companies by greater than for any Post Closing Period, in which case Seller and Purchaser shall jointly control all proceedings with respect to any such Tax Contest at their own cost and expense. Notwithstanding the foregoing, if notice is given to Seller of the commencement of any Tax audit or administrative or judicial proceeding or 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 demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary determination made in such Tax Contest or any Joint Venture which, if determined adversely to the taxpayer compromise or after the lapse settlement thereof effected by Purchaser. The failure of 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 reasonably prompt notice of an asserted any Tax Liability as required by this Section 7.03, Contest shall not limit the obligation of the Seller to indemnify the Purchaserrelease, the Company, any Subsidiary waive or any Joint Venture for such Tax Liability unless and only otherwise affect Seller’s obligations with respect thereto except to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of Seller can demonstrate actual and material loss and prejudice as a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase result of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlfailure.
(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
Sources: Stock Purchase Agreement
Contests. (a) After In the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing of the proposed assessment or the commencement case of any notice of Tax audit deficiency, proposed Tax adjustment, Tax assessment, Tax audit, Tax examination or other administrative or judicial proceeding court proceeding, suit, dispute or of other claim with respect to Taxes (a “Tax Claim”) relating to any demand Tax period ending on or claim on before the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture whichClosing Date that, if determined adversely to the taxpayer or after the lapse of time, could Company would be grounds for indemnification by a claim for indemnity pursuant to this Section 6.4, Purchaser shall upon receipt of such Tax Claim, promptly, but no later than 15 days, inform the Seller under Section 7.01. Such notice Shareholders of such Tax Claim and the Shareholders (at their sole cost and expense) shall contain factual information have the right to control the conduct of such Tax Claim and shall have the right to settle such Tax Claim; provided, however, (i) that Purchaser may fully participate in the dispute of such Tax Claim, (ii) the Shareholders shall keep Purchaser timely informed with respect to the extent known to the Purchasercommencement, its Affiliates, the Company, any Subsidiary or any Joint Venture) describing the asserted Tax Liability in reasonable detail status and shall include copies of any notice or other document received from any taxing authority in respect nature of any such asserted Tax Liability. Any failure by Claim and (iii) the Purchaser to give the Seller prompt notice of an asserted Tax Liability as required by this Section 7.03, Shareholders shall not limit settle, compromise or dispose of any Tax Claim without the obligation consent of the Seller to indemnify the Purchaser, the Companywhich consent shall not be unreasonably withheld, any Subsidiary conditioned or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) delayed. In the case of a 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 administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do soproceeding, 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 cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may shall not be unreasonably withheld. In , conditioned or delayed and (ii) shall keep the other party timely informed with respect to the commencement, status and nature of any such Contest, the 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 partyTax Claim. The failure by Purchaser may participate, at its own expense, in any Contest in which to provide the Seller assumes control, and notice contemplated by this Section 6.4(e) shall not affect the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlShareholders’ indemnification obligations under Article VII.
(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. If a notice of deficiency, proposed adjustment, assessment, audit, examination, or other administrative or court proceeding, suit, dispute, or other claim (aa "TAX CONTEST") After shall be delivered, sent, commenced, or initiated to or against Parent or the Merger Effective TimeCompany or any Subsidiary by any Taxing authority with respect to Taxes that results in or may result in a Tax Loss (as hereinafter defined in Section 11.2) for which indemnification may be claimed from the Stockholders under this Agreement, the Purchaser Parent shall promptly notify the Seller Stockholders' Representative in writing of such Tax Contest; provided that the proposed assessment or failure to so notify shall not relieve the commencement Stockholders of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchasertheir indemnification obligations hereunder, its Affiliates, the Company, any Subsidiary or any Joint Venture 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. Such notice shall contain factual information (except to the extent known 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 Purchaser, its Affiliates, the Company, any Subsidiary Company or any Joint Venture) describing the asserted Tax Liability in reasonable detail Subsidiary's interest and shall include copies to employ counsel of any notice or other document received from any taxing authority in their choice at their expense with respect of to any such asserted Tax Liability. Any failure by the Purchaser Contest relating 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods period ending on or before the date Closing Date; and Parent shall cause each of the Mergerapplicable Company or any Subsidiary to execute any powers of attorney or other documents or forms necessary in order to allow the Stockholders to control such contest and to settle any such Tax Contest (subject to Parent's consent, the Seller which shall not be unreasonably withheld). Parent shall have the sole right, at its expense, right to direct represent the Company or any Subsidiary's interests 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 employ counsel of its choice at its own choosing, any Contest involving any asserted Tax Liability 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 indemnity may be sought from the Seller Parent is entitled to indemnification pursuant to Section 7.0111.2. If the Seller elects to direct a ContestNotwithstanding any other provision of this Section 7.5, the Seller shall within thirty (30) days Stockholders' Representative may not, without Parent's consent, settle or otherwise dispose of receipt of the notice of asserted any Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of Contest if such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary settlement or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would disposition could adversely affect the other party Tax liability of Parent or the Company or any Subsidiary for such taxable any Tax period or portion thereof beginning on or after the Closing Date. In the event the Stockholders do not take control of a subsequent taxable period without Tax Contest that they have the written consent right to control hereunder within 30 days of receiving notification of the other party, which consent may not be unreasonably withheld. In any existence of such Tax Contest, the 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. The Purchaser Parent may participate, at its own expense, in any Contest in which the Seller assumes take control, and the Seller may participate, at its own expense, Stockholders shall be liable to Parent for any expenses (including attorneys' expenses) incurred by Parent in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperateconducting such Tax Contest, and the Purchaser agrees any such expense shall be considered a Tax Loss for which Parent is entitled to cause the Company and the Subsidiaries indemnification pursuant to cooperate, in the defense against or compromise of any claim in any Contest.Section 11.2. 33 38
Appears in 1 contract
Contests. (a) After the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing Each 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 Subsidiary or any Joint Venture 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. 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 CompanyCompany 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 the Recipient of written notice of any Subsidiary pending or any Joint Venture threatened audit, deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim ("Tax Claim") that could affect the liability for Taxes of such other party, and such notice shall provide the details of such Tax Liability unless Claim. If the Recipient fails to give such prompt notice to the other party, the Recipient shall not be entitled to indemnification for any Taxes arising in connection with such Tax Claim if and only to the extent that such failure resulted in an economic detriment to give notice materially and adversely affects the Sellerother party.
(b) In Seller shall have the case of a sole right to represent and control the Acquired Companies' interests in any Tax audit or administrative or judicial proceeding (a “Contest”) that relates Claim relating to taxable periods ending on or before the date Closing Date and to employ counsel of the Mergerits choice at its expense; provided, the however, that Seller shall have no right to represent the sole right, at its expense, to direct and control the conduct of, or pursue or settle, -------- ------- Acquired Companies' interest in any such Contest.
(c) 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 Seller elects to direct a Contest, the Claim unless Seller shall have first notified Purchaser in writing of Seller's intention to do so within thirty twenty (3020) days of receipt notification of the notice Tax Claim by Purchaser. Purchaser may participate in such Tax Claim at its own expense. In the case of asserted a Split Tax Liability notify Period, Seller shall be entitled to participate at its expense in any Tax Claim relating in any part to Taxes attributable to the Purchaser Pre-Closing Period and, with the prior written consent of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperatePurchaser, at the Seller’s 's sole expense, in each phase of such Contest. If may assume the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense)entire Tax Claim. The Seller shall fully cooperate in each phase None of such Contest. Neither the Purchaser, the Companyany of its Affiliates, any Subsidiary or any Joint VentureAcquired Company may settle or otherwise dispose of any Tax Claim for which Seller may have a liability under this Agreement, on the one handor which may result in an increase in Seller's liability under this Agreement, nor the Seller, on the other hand, shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the prior written consent of the other partySeller, which consent may not be unreasonably withheld, unless Purchaser and the Acquired Companies fully indemnify Seller in writing with respect to such liability in a manner satisfactory to Seller. In Neither Seller nor any of its affiliates may settle or otherwise dispose of any Tax Claim for which Purchaser or the Acquired Companies may have a liability under this Agreement, or which may result in an increase in Purchaser's or the Acquired Companies' liability under this Agreement, without the prior written consent of Purchaser, which consent may not be unreasonably withheld, unless Seller fully indemnifies Purchaser and the Acquired Companies in writing with respect to such Contestliability in a manner satisfactory to Purchaser.
(c) Seller shall use its reasonable best efforts to minimize any interest, the costs penalties, and expenses of the party assuming control of such Contest shall other additions to Taxes that may be paid first from payable with respect to any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, in any Contest in Tax Claim for which the Seller assumes control, has the right to represent and control the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlAcquired Companies' interests.
(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
Sources: Merger Agreement (GSL Corp)
Contests. (ai) After 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 Subsidiary or any Joint Venture 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. 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 Sellers 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expenseBuyer agree, in each phase of such Contest. If the Seller elects not case at no cost to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, 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. Sellers shall, at their election, have the right to represent a Target Company's interests in any Contest relating to a Tax matter arising in, or related to, a Pre-Closing Period to the extent such Contest is in connection with any Taxes for which Sellers may be liable pursuant to Section 10.2 hereof, to employ counsel of their choice at their expense and to control the conduct of such Contest, including Settlement or Other Disposition thereof; provided, however, that Buyer shall have the right to consult with Sellers regarding any such Contest that may affect a Target Company for any periods ending after the Closing Date, at Buyer's own expense, and provided further, that any settlement or other disposition of any such Contest may only be made with the consent of Buyer, which consent may will not be unreasonably withheld. In connection with any Contest which is controlled by Sellers pursuant to this Section 9.5(b), no Seller shall, without the prior written consent of Buyer (which consent shall not be unreasonably withheld), (A) make any election, change any annual accounting period, or adopt or change any accounting method if such election, adoption or change would have the effect of increasing the tax liability of Buyer, or its Affiliates or any of the Target Companies in any Tax Period ending after the Closing Date, or (B) file any amended return, enter into any closing agreement, 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 Target Companies or take any action, if such amendment, agreement, settlement, surrender, consent of other action would have the effect, directly or indirectly, of increasing the liability for Taxes of Buyer, its Affiliates, or any of the Target Companies for or with respect to any Tax Period ending after the Closing Date. Buyer shall not, without the prior written consent of Seller (which consent shall not be unreasonably withheld), (A) make any election, change any annual accounting period, or adopt or change any accounting method if such election, adoption or change would have the effect of increasing liability for Taxes in any Tax Period ending on or before the Closing Date, or (B) file any amended return, enter into any closing agreement, 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 Target Companies or take any action, if such amendment, agreement, settlement, surrender, consent of other action would have the effect, directly or indirectly, of increasing the liability for Taxes for or with respect to any Tax Period ending on or before the Closing Date. Notwithstanding anything herein to the contrary, Buyer shall the right to control any Contest with respect to Straddle Periods of the Target Companies.
(ii) Unless Sellers have previously received written notice from Buyer or the Target Companies of the existence of a Contest, the costs and expenses Sellers shall give written notice to Buyer of the party assuming control existence of any Contest relating to a Tax matter that is Buyer's responsibility pursuant to this Agreement within twenty (20) days from the date of receipt by a Seller of any written notice of such Contest by a Taxing Authority; provided that failure to give such notice shall be paid first relieve Buyer of any liability with respect to such Contest unless Buyer was otherwise aware of such Contest or the failure to give such notice did not result in additional expenses or otherwise prejudice the Buyer. Unless the Buyer has previously received written notice from any recovery before any payments are made Sellers of the existence of a Contest, Buyer shall give written notice to either party. The Purchaser may participate, at its own expense, in Sellers of the existence of any Contest in for which Sellers may have responsibility within twenty (20) days from the Seller assumes control, and receipt by the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(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 Buyer of any claim written notice of such Contest by a Taxing Authority; provided that failure to give such notice shall relieve Sellers of any liability with respect to such Contest unless the Insider Stockholders were otherwise aware of such Contest or the failure to give such notice did not result in any Contestadditional expenses or otherwise prejudice Sellers.
Appears in 1 contract
Sources: Stock Purchase Agreement (Valassis Communications Inc)
Contests. (a) After Whenever any taxing authority asserts a claim, makes an assessment or otherwise disputes or affects the Merger Effective TimeTax reporting position of the Company for periods ending prior to the Closing Date, the Company shall, promptly upon receipt by Purchaser or the Company of notice thereof, inform the Stockholders, and the Stockholders shall promptly notify have the Seller in writing of the proposed right, at their expense, to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaserdispute, its Affiliates, the Company, any Subsidiary or any Joint Venture 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. Such notice shall contain factual information (to the extent known such proceedings affect the amount of Taxes with respect to which the Company and Purchaser are entitled to indemnification pursuant to Section 9.1, provided that 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 Company or its Subsidiaries for any period after the Closing Date to any extent (including, but not limited to, the imposition of income tax deficiencies, reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods or the denial of amortization or depreciation deductions) without the prior written consent of Purchaser. Such consent shall not be unreasonably withheld and shall not be necessary to the extent the Stockholders have indemnified Purchaser and the Company against the effects of any such settlement. Purchaser, its Affiliates, the Company, Company and their representatives may also participate in 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 such proceedings at their own expense. Whenever any taxing authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes with respect to which the Company and Purchaser are not entitled to indemnification pursuant to Section 9.1 because such Taxes are not covered by the indemnification provisions set forth in respect of this Agreement, the Stockholders shall, promptly upon receiving notice thereof, inform Purchaser. The Company shall have the right to control any resulting proceedings and to determine whether and when to settle any such asserted Tax Liability. Any failure by the Purchaser to give the Seller prompt notice of an asserted Tax Liability as required by this Section 7.03claim, shall not limit the obligation of the Seller to indemnify the Purchaserassessment or dispute, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and but only to the extent that such failure resulted 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 an economic detriment any such proceedings at their own expense. Purchaser shall not (and shall cause the Company not to) file or amend any Tax Return with respect to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before prior to the date Closing Date. Notwithstanding anything set forth herein, if a taxing authority requests an extension of the Mergerstatute of limitations for assessment and the Stockholders control such proceeding, the Seller extension 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, granted if the costs and expenses statute of limitations would be extended to a date after five years following the party assuming control of such Contest shall be paid first from any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlClosing Date.
(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
Sources: Recapitalization and Stock Purchase Agreement (American Axle & Manufacturing Holdings Inc)
Contests. (a) After the Merger Effective TimeClosing, 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 Subsidiary Purchaser or any Joint Venture Company which, if determined adversely to the taxpayer or after the lapse of time, could would be grounds for indemnification by the Seller under Section 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 Ventureknown) describing the asserted Tax Liability liability in reasonable detail and shall include copies of any notice or other document received from any taxing Tax authority in respect of any such asserted Tax Liabilityliability. Any failure by the If Purchaser fails to give the Seller prompt notice of an asserted Tax Liability 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 limit the have any obligation of the Seller to indemnify the Purchaserfor any loss arising out of such asserted Tax liability, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that (b) if Seller is not so precluded from contesting but such failure resulted to give prompt notice results in an economic a detriment to Seller, then any amount which Seller is otherwise required to pay Purchaser pursuant to Section 7.01 with respect to such liability shall be reduced by the Selleramount of such detriment.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 controldirect, through counsel of its own choosingchoosing and at its own expense, any Contest audit, claim for refund and administrative or judicial proceeding involving any asserted Tax Liability liability with respect to which indemnity may be sought from the Seller pursuant under Section 7.01 (any such audit, claim for refund or proceeding relating to Section 7.01an asserted Tax liability is referred to herein as a "Contest"). If the Seller elects to direct a Contest, the Seller it shall within thirty (30) 30 days of receipt of the notice of asserted Tax Liability liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures each Company to fully cooperate, at the expense of Seller’s expense, in each phase of such Contest. Seller shall keep Purchaser informed regarding the progress but not any substantive aspect of any Contest which Seller has elected to direct. If the Seller elects not to direct the Contest, fails to notify Purchaser of its election as herein provided or contests its obligation to indemnify under Section 7.01, Purchaser or the Seller shall promptly notify the Purchaser and the Purchaserrelevant Company may pay, 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or agree contest, at its own expense, such asserted liability. However, in such case, neither Purchaser nor such Company may settle or compromise any asserted liability over the objection of Seller; provided, however, that consent to settle any claim pursuant to such audit settlement or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may compromise shall not be unreasonably withheld. In any such Contestevent, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Contest. If Seller chooses to direct the Contest, Purchaser assumes control.
shall promptly empower and shall cause the relevant Company promptly to empower (dby power of attorney and such other documentation as may be appropriate) The such representatives of Seller as it may designate to represent Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the such Company and the Subsidiaries to cooperate, in the defense against or compromise of any claim in any ContestContest 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) After the Merger Effective Time, the Purchaser Acquiror shall promptly notify the Seller Member Representative in writing upon receipt by Acquiror or any Affiliate of Acquiror (including the proposed assessment or Acquired Companies after the commencement Closing Date) of written notice of any Tax audit inquiries, claims, assessments, audits or administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely similar events with respect to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.01. Such notice shall contain factual information (Taxes relating 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods period ending on or before the date Closing Date for which the Seller Parties could reasonably be expected to be liable (any such inquiry, claim, assessment, audit or similar event, a “Tax Matter”). The Member Representative shall have the authority to represent the interests of the MergerAcquired Companies with respect to any Tax Matter before the IRS, the Seller any other taxing authority, any other Governmental Authority or any court and shall have the sole right, at its expense, right to direct and control the conduct defense, compromise or other resolution of any Tax Matter, including responding to inquiries, filing Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or pursue or settlerelating to, such Contest.
(c) With respect to Straddle Periodsa Tax Matter; provided, that 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 Seller elects to direct a Contest, the Seller Member Representative shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any settlement of or otherwise compromise any Tax Matter that materially adversely affects or agree to settle any claim pursuant to such audit or proceeding which would may materially adversely affect the other party Tax liability of Acquiror, or the Acquired Companies for such taxable any period or a subsequent taxable period ending after the Closing Date, including the portion of the Straddle Period that is after the Closing Date, without the prior written consent of the other partyAcquiror, which consent may shall not be unreasonably withheld, conditioned or delayed. In 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 Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlproceeding.
(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
Sources: Membership Interest Purchase Agreement (Valeant Pharmaceuticals International)
Contests. (ai) After Carrier (at Carrier’s own expense) shall be entitled to control the Merger Effective Timedefense (including as to settlement, except as provided below) of any audit, litigation, proceeding, or other action with respect to Taxes (a “Tax Proceeding”) with respect to a Pre-Closing Tax Period (other than a Straddle Period, Straddle Periods being governed by Section 11.01(h)(iii) below) to the Purchaser extent such audit, litigation, proceeding or other action relates to the Company or the Northeast Business Contributed Assets (“Pre-Closing Northeast Business Audits”), provided, however, that Carrier shall promptly notify not cause the Seller in writing Company to enter into a settlement that by its terms, and without Watsco’s prior written consent, binds the Company for a Post-Closing Tax Period as a result of the proposed assessment settlement of such Pre-Closing Northeast Business Audit. The Company shall be entitled to control such Tax Proceeding (at Carrier’s expense) to the extent Carrier does not exercise its right to control a Tax Proceeding pursuant to this Section 11.01(h)(i). The Parties agree that the Company shall not be permitted to settle, compromise, or discharge any Pre-Closing Northeast Business Audit, or admit any liability with respect thereto, without the commencement prior written consent of Carrier.
(ii) Watsco (at Watsco’s own expense) shall be entitled to control the defense (including as to settlement, except as provided below) of any Tax audit or administrative or judicial proceeding or of any demand or claim on the PurchaserProceeding with respect to a Pre-Closing Tax Period (other than a Straddle Period, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification Straddle Periods being governed by the Seller under Section 7.01. Such notice shall contain factual information (11.01(h)(iv) below) to the extent known such Tax Proceeding relates to the PurchaserHomans Business Contributed Assets (“Pre-Closing Homans Business Audit”), its Affiliatesprovided, the Companyhowever, 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, that Watsco shall not limit cause the obligation Company to enter into a settlement that by its terms, and without Carrier’s prior written consent, binds the Company for a Post-Closing Tax Period as a result of the Seller settlement of such Pre-Closing Homans Business Audit. The Company shall be entitled to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for control such Tax Liability unless and only Proceeding (at Watsco’s expense) to the extent that such failure resulted in an economic detriment Watsco does not exercise its right to the Sellercontrol a Tax Proceeding pursuant to this Section 11.01(h)(ii).
(biii) In the case of a Tax audit or administrative or judicial proceeding (Proceeding for a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 counsel of its own choosing, any Contest involving any asserted Tax Liability Period with respect to which indemnity may the Company or the Northeast Business Contributed Assets, if such Tax Proceeding relates or could reasonably be sought expected to relate to both a claim for Taxes with respect to the Company or the Northeast Business Contributed Assets (“Northeast Business Taxes”) for a Pre-Closing Tax Period and a claim for Northeast Business Taxes for a Post-Closing Tax Period, and such claim for Northeast Business Taxes for a Pre-Closing Tax Period is not separable from the Seller pursuant to Section 7.01. If the Seller elects to direct such claim for Northeast Business Taxes for a ContestPost-Closing Tax Period, the Seller shall within thirty Company (30if the claim for Northeast Business Taxes that are for a Post-Closing Tax Period exceeds or reasonably could be expected to exceed in amount the claim for Northeast Business Taxes for a Pre-Closing Tax Period) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause or otherwise Carrier (Carrier or the Company, as the Subsidiaries and case may be, the Joint Ventures “Northeast Business Tax Contest Controlling Party”), shall be entitled to fully cooperate, at control the Seller’s expense, in each phase defense of such ContestTax Proceeding. If the Seller elects not to direct the ContestIn such case, the Seller other Party (the “Northeast Business Tax Contest Non-Controlling Party”) shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest be entitled to participate fully (at the PurchaserNortheast Business Tax Contest Non-Controlling Party’s sole expense) in the conduct of such Tax Proceeding and the Northeast Business Tax Contest Controlling Party shall not settle, compromise, or discharge such Tax Proceeding without the consent of such Northeast Business Tax Contest Non-Controlling Party (which consent shall not be unreasonably withheld or delayed). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the costs and expenses of conducting the party assuming control defense of such Contest Tax Proceeding shall be paid first from any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, in any Contest in which reasonably apportioned based on the Seller assumes control, relative amounts of the claim for Northeast Business Taxes for a Pre-Closing Tax Period and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlclaim for Northeast Business Taxes for a Post-Closing Tax Period.
(div) The Purchaser In the case of a Tax Proceeding for a Straddle Period with respect to the Homans Business Contributed Assets, if such Tax Proceeding relates or could reasonably be expected to relate to both a claim for Taxes with respect to the Homans Business Contributed Assets (“Homans Business Taxes”) for a Pre-Closing Tax Period and a claim for Homans Business Taxes for a Post-Closing Tax Period, and such claim for Homans Business Taxes for a Pre-Closing Tax Period is not separable from such claim for Homans Business Taxes for a Post-Closing Tax Period, the Company (if the claim for Homans Business Taxes that are for a Post-Closing Tax Period exceeds or reasonably could be expected to exceed in amount the claim for Homans Business Taxes for a Pre-Closing Tax Period) or otherwise Watsco (Watsco or the Company, as the case may be, the “Homans Business Tax Contest Controlling Party”), shall be entitled to control the defense of such Tax Proceeding. In such case, the other Party (the “Homans Business Tax Contest Non-Controlling Party”) shall be entitled to participate fully (at the Homans Business Tax Contest Non-Controlling Party’s sole expense) in the conduct of such Tax Proceeding and the Seller agree to cooperateHomans Business Tax Contest Controlling Party shall not settle, compromise, or discharge such Tax Proceeding without the consent of such Homans Business Tax Contest Non-Controlling Party (which consent shall not be unreasonably withheld or delayed). The costs and expenses of conducting the defense of such Tax Proceeding shall be reasonably apportioned based on the relative amounts of the claim for Homans Business Taxes for a Pre-Closing Tax Period and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, in the defense against or compromise of any claim in any Contestfor Homans Business Taxes for a Post-Closing Tax Period.
Appears in 1 contract
Contests. (a) After Each Party entitled to indemnification pursuant to Section 8.2 hereof (a “Tax Indemnified Person”) agrees to give written notice to the Merger Effective TimeIndemnifying Person (the “Tax Indemnitor”) of any written notice received by the Tax Indemnified Person or an Affiliate of such Tax Indemnified Person (including, in the case where Buyer is the Tax Indemnified Person, the Purchaser shall promptly notify Company and each Subsidiary thereof) which involves the Seller in writing assertion of the proposed assessment any claim, or the commencement of any audit, suit, Action or proceeding (collectively, a “Tax audit Claim”) in respect of which indemnity may be sought (an “Indemnifiable Tax”) within ten (10) Business Days of such receipt or administrative or judicial proceeding or of any demand or claim on such earlier time as would allow the Purchaser, its Affiliates, Tax Indemnitor to timely respond to such Tax Claim. The Tax Indemnified Person will give the Company, any Subsidiary or any Joint Venture which, if determined adversely Tax Indemnitor such information with respect to the taxpayer or after Tax Claim as the lapse of time, could be grounds for indemnification by the Seller under Section 7.01Tax Indemnitor may reasonably request. Such written 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 describe 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 facts constituting 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 Subsidiary or any Joint Venture basis for such Tax Liability unless Indemnitor’s interests in such Tax Claim, the nature of the relief sought, and only to the extent that such failure resulted in an economic detriment to amount of the Sellerclaimed Losses (including Taxes).
(b) In the case of a The Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participateIndemnitor may, at its own expense, participate in and, upon notice to the Tax Indemnified Person, assume control of the defense of any Contest Tax Claim for which it is the Tax Indemnitor. If the Tax Indemnitor assumes control, it will have the exclusive power to contest or settle the Tax Claim and determine the manner in which the Seller assumes control, and the Seller may participate, at its own expensecontest or settlement occurs, in any Contest in each case without the participation of the Tax Indemnified Person. In no case will a Tax Indemnified Person settle or otherwise compromise a Tax Claim without the Tax Indemnitor’s prior written consent.
(c) If a Tax Claim potentially involves some Taxes for Pre-Closing Tax Periods for which Seller would be required to indemnify Buyer pursuant to Section 8.2 and other Taxes for Pre-Closing Tax Periods for which Seller would not be required to indemnify Buyer, then, for purposes of this Section 8.4 only, Seller will be the Purchaser assumes controlTax Indemnitor and Buyer will be the Tax Indemnified Person as to all such Tax Claims.
(d) The Purchaser and Tax Indemnitor may discharge, at any time, its indemnity obligations by paying the Tax Indemnified Person the amount of the applicable indemnifiable Loss, calculated on the date of such payment.
(e) Notwithstanding any provision to the contrary herein, Seller agree to cooperateor an Affiliate of Seller shall have sole control over, and the Purchaser agrees neither Buyer nor any Affiliate of Buyer shall have a right to cause the Company and the Subsidiaries control or participate in, any Tax Claim relating to cooperatea consolidated, in the defense against combined, unitary, affiliated or compromise similar Tax or Tax Return that includes Seller or any Affiliate of any claim in any ContestSeller.
Appears in 1 contract
Sources: Stock Purchase Agreement (Volt Information Sciences, Inc.)
Contests. (a) After the Merger Effective TimeClosing, the Purchaser Buyer 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 PurchaserBuyer, its Affiliates, Affiliates or the Company, any Subsidiary or any Joint Venture Acquired Companies which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.01Seller. Such notice shall contain factual information (to the extent known to the PurchaserBuyer, its Affiliates, Affiliates or the Company, any Subsidiary or any Joint VentureAcquired Companies) describing the asserted Tax Liability 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 Liabilityliability. Any failure by the Purchaser If Buyer fails to give the Seller prompt notice of an asserted Tax Liability liability as required by this Section 7.038.4, then Seller shall not limit the have any obligation of the Seller to indemnify the Purchaserfor any loss arising out of such asserted Tax liability, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and but only to the extent that failure to give such failure resulted notice results in an economic a material detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the MergerClosing Date, the Seller shall have the sole right, at its expense, to direct and control the conduct ofof such Contest, provided, however, that Seller shall keep Buyer reasonably 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 Contest without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned, or pursue or settle, such Contestdelayed).
(c) With respect to Straddle Periods, the Seller may elect to Buyer shall 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 a taxable period that begins prior to the Seller pursuant to Section 7.01. If Closing Date and ends after the Seller elects to direct Closing (a Contest“Straddle Period”), the and Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary None of Buyer or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into Acquired Company may settle or compromise any compromise or agree to settle any claim asserted liability for which Seller would have an indemnification obligation pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period this Article 8 without the prior written consent of the other partySeller; provided, which however, that consent may to settlement or compromise shall not be unreasonably withheld, conditioned, or delayed. In any such Contestevent, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any such Contest to the extent it could result in which the Purchaser assumes controlan indemnification obligation of Seller pursuant to this Article 8.
(d) The Purchaser Buyer and the Seller agree to cooperate, and the Purchaser Buyer agrees to cause the Company and the Subsidiaries 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) After the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing of the proposed assessment or the commencement of If any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, its AffiliatesGovernmental Authority issues to Buyer, the Company, any Subsidiary Holdco or any Joint Venture whichof their respective Affiliates a written notice of its intent to audit, if determined adversely 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 taxpayer Company or after Holdco for a Pre-Closing Tax Period or a Straddle Period, or a written notice or inquiry with respect to any Taxes or the lapse filing of timea Tax Return (a “Tax Claim”), could be grounds for indemnification by Buyer shall notify Seller of its receipt of such Tax Claim within five (5) Business Days following receipt; provided however, that the failure of Buyer to notify Seller under of its receipt of a Tax Claim within five (5) Business Days shall not relieve Seller from liability pursuant to Section 7.01. Such notice shall contain factual information (6.03(a) except to the extent known Seller is materially prejudiced as a consequence of such failure. Seller shall control any Tax Claim and any other matter with respect to a Pre-Closing Tax Period of the Company or Holdco (a “Seller’s Tax Contest”); provided, that with respect to a Seller’s Tax Contest that involves United States federal or Arizona income Taxes (a “Seller’s Consolidated Tax Contest”) Seller shall provide Buyer with any information that Buyer reasonably requests that pertains solely to either the Company or Holdco and is in connection with the Seller’s Consolidated Tax Contest and, provided further, with respect to a Seller’s Tax Contest that is not a Seller’s Consolidated Tax Contest (i),the Buyer, at its sole cost and expense, shall have the right to participate in such Seller’s Tax Contest; and (ii) Seller shall not settle such Seller’s Tax Contest without Buyer’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned, provided that, if Buyer does not consent to the Purchasersettlement 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 Affiliatessole 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, any Subsidiary or any Joint Venture) describing the asserted Tax Liability in reasonable detail Holdco and their respective Affiliates 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 be entitled 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period settlement without the written consent of the other partySeller so long as Buyer, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and Holdco agree in writing that Seller shall not be responsible for or covenant to pay and shall not indemnify the Subsidiaries to cooperate, in Buyer Indemnitees from and against any Pre-Closing Taxes of the defense against Company or compromise of any claim in any ContestHoldco resulting from such settlement or action.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Contests. (a) After For purposes of this Agreement, a "Contest" is any audit, court proceeding or other dispute with respect to any tax matter that affects an Acquired Entity. Unless Purchaser has previously received written notice from Sellers of the Merger Effective Timeexistence of such Contest, the Purchaser shall promptly notify the Seller in writing give written notice to Sellers of the proposed assessment or the commencement existence of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely Contest relating to the taxpayer or after the lapse of 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (matter arising in a “Contest”) that relates to taxable periods period ending on or before the date Effective Date within ten (10) days from the receipt by Purchaser of any written notice of such Contest, but no failure to give such notice shall relieve the Seller of any liability hereunder. Unless Sellers have previously received written notice from Purchaser of the Merger, the Seller shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, existence of such Contest.
(c) 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 Seller elects to direct a Contest, the applicable Seller shall give written notice to Purchaser of the existence of any Contest for which Purchaser has responsibility within thirty ten (3010) days from the receipt by such Seller of receipt of the any written notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Sellerand Sellers, on the other handother, shall enter into any compromise or agree agree, in each case at no cost to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, 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, Tax Returns, documents, files, other information (including 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. Sellers shall, at their election, have the right to represent an Acquired Entity's interests in any Contest relating to a Tax matter arising in a period ending on or before the Effective Date, to employ counsel of its choice at their expense and to control the conduct of such Contest, including settlement or other disposition thereof; provided, however, that Purchaser shall have the right to consult with the Sellers regarding any such Contest that may affect such Acquired Entity for any periods ending after the Closing Date at Purchaser's own expense; and provided further, that any settlement or other disposition of any such Contest may only be with the consent of Purchaser, which consent may will not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(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
Sources: Purchase and Sale Agreement (CNL Hotels & Resorts, Inc.)
Contests. (a) Section 6.16.3.1 After the Merger Effective TimeClosing, the Purchaser each party shall promptly notify the Seller in writing other party of the proposed assessment any demand, claim or notice of the commencement of any a Tax audit Proceeding received with respect to Taxes for which OpCo or administrative or judicial proceeding or of any demand or claim on Buyer is liable pursuant to this Agreement; provided, however, that a party’s failure to give such notice will not affect the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely other party’s rights to indemnification under Section 9.8 except to the taxpayer or after extent that the lapse of time, could be grounds for indemnification by the Seller under Section 7.01other party is materially prejudiced thereby. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Ventureknown) describing the asserted Tax Liability in reasonable detail liability and shall include copies of the relevant portion of any notice or other document received from any taxing authority Governmental Entity or any other Person in respect of any such asserted Tax Liabilityliability.
Section 6.16.3.2 At OpCo’s request and expense, Buyer shall contest (or cause to be contested) any asserted Pre-Closing Tax Period Tax liability for which OpCo may have an indemnity obligation under Section 9.8. Any failure by the Purchaser to give the Seller prompt notice of an asserted Tax Liability as required by this Section 7.03If OpCo so elects, shall not limit the and acknowledges in writing its ability and obligation of the Seller to indemnify the PurchaserParent Indemnified Parties for the Pre-Closing Tax Period Tax in question, OpCo shall control the Companyconduct, through counsel of its own choosing and at its own expense, of any Subsidiary or Tax Proceeding involving any Joint Venture 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 exclusively liable pursuant to Section 9.8; provided that Buyer and its Affiliates shall have the right to participate in such Tax Liability unless and only 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 the extent consent of Buyer, which consent shall not be unreasonably withheld or delayed. Notwithstanding any other provision in this Agreement, Buyer shall control the conduct of any Tax Proceeding which may materially adversely affect any Parent Indemnified Party (after taking into account OpCo’s indemnification obligations); provided, that Buyer shall not accept any proposed adjustment or enter into any settlement or agreement in compromise regarding any Tax Proceeding controlled by Buyer for which OpCo may have an indemnity obligation without the consent of OpCo (not to be unreasonably withheld or delayed), and, if the Tax Proceeding relates to a Pre-Closing Tax Period or Straddle Period, OpCo shall have the right to participate in any such failure resulted in an economic detriment proceeding at its own expense. Buyer shall keep OpCo fully informed on a timely basis of all matters relating to the Sellerany Tax Proceeding controlled by Buyer hereunder.
(b) Section 6.16.3.3 In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) Proceeding that relates to taxable periods 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 if OpCo first acknowledges in writing its ability and obligation to indemnify the Parent Indemnified Parties for the portion of the Tax in question that relates to the portion of the Straddle Period ending on or before the Closing Date; provided, that Buyer shall not accept any proposed adjustment or enter into any settlement or agreement in compromise regarding any such Tax Proceeding OpCo’s prior written consent (such consent not to be unreasonably withheld or delayed). Buyer shall keep OpCo fully informed on a timely basis of all matters relating to any Tax Proceeding controlled by Buyer hereunder.
Section 6.16.3.4 Payment by OpCo of any amount due under Section 9.8 shall be made within ten (10) days following written notice by Buyer that payment of such amounts to the appropriate Governmental Entity 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 Governmental Entity or applicable third party. Payment by Buyer of any amount due under Section 9.8 shall be made within ten (10) days following written notice by OpCo that payment of such amounts to the appropriate Governmental Entity 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 Governmental Entity or applicable third party. In the case of a Tax that is contested in accordance with the provisions of this Section 6.16.3, payment of such contested Tax will not be considered due earlier than the date of the Mergera “final determination” to such effect is made by such Governmental Entity. For this purpose, the Seller a “final determination” shall have the sole rightmean a settlement, at its expense, to direct and control the conduct ofcompromise, or pursue or settleother agreement with the relevant Governmental Entity, such Contest.
(c) 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 a deficiency notice with respect to which indemnity may be sought from the Seller pursuant to Section 7.01. If period for filing a petition with the Seller elects to direct a ContestTax court or the relevant state, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary local or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period foreign tribunal has expired or a subsequent taxable period without the written consent decision of the other party, which consent may any court of competent jurisdiction that is not be unreasonably withheld. In any such Contest, the costs and expenses of the party assuming control of such Contest shall be paid first from any recovery before any payments are made subject to either party. The Purchaser may participate, at its own expense, in any Contest in appeal or as to which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controltime for appeal has expired.
(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
Sources: Purchase Agreement (Hcp, Inc.)
Contests. (a) After the Merger Effective TimeClosing, the Purchaser shall promptly notify the Seller in writing of the any written notice of a proposed assessment or the commencement of any Tax claim in an audit or administrative or judicial proceeding of Purchaser or of any demand or claim on of the Purchaser, its Affiliates, the Company, any Companies and each Company Subsidiary or any Joint Venture which, if determined adversely to the taxpayer or after the lapse of timetaxpayer, could would be grounds for indemnification by the Seller under Section 7.01. Such this Article VIII; provided, however, that a failure to give such notice shall contain factual information (will not affect Purchaser's right to indemnification under this Article except to the extent known to the Purchaserextent, its Affiliatesif any, the Companythat, any Subsidiary but for such failure, Seller could have avoided all 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 a portion of the Seller to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted liability in an economic detriment to the Sellerquestion.
(b) In the case of a Tax an audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the MergerClosing Date, provided that Seller acknowledges in writing its liability under this Agreement to hold Purchaser, the Companies and each Company Subsidiary harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to periods ending on or before the Closing Date (or, in the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 8.02(b) to the portion of such year ending on or before the Closing Date), Seller shall have the sole right at its expense to participate in and control the conduct of such audit or proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which Seller has acknowledged its liability; Purchaser also may participate in any such audit or proceeding and, if Seller does not assume the defense of any such audit or proceeding, Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days prior written notice to Seller setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which Seller has acknowledged its liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which Purchaser would be liable, Purchaser shall have the right, at its expense, to direct and control the conduct of, audit or pursue or settle, such Contestproceeding with respect to the latter issues.
(ci) With respect to Straddle Periodsissues relating to a potential adjustment for which both Seller (as evidenced by its acknowledgment under this Section) and Purchaser or the Companies or any Company Subsidiary could be liable, (a) each party may participate in the Seller may elect to direct audit or proceeding, and control, through counsel of its own choosing, any Contest involving any asserted Tax Liability with respect to (b) the audit or proceeding shall be controlled by that party which indemnity may be sought from would bear the Seller pursuant to Section 7.01. If the Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt burden of the notice greater portion of asserted the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax Liability notify periods. The principle set forth in the Purchaser immediately preceding sentence shall govern also for purposes of its intent to do sodeciding any issue that must be decided jointly (including, and the Purchaser shall cooperate and shall cause the Companywithout limitation, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, choice of judicial forum) in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the situations in which separate issues are otherwise controlled under this Article VIII by Purchaser and the Seller.
(ii) Neither Purchaser, the CompanyCompanies, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one handCompany Subsidiary, nor the Seller, on the other hand, Seller shall enter into any compromise or agree to settle any claim pursuant to such any Tax audit or proceeding which would adversely affect the other party for such taxable period year or a subsequent taxable period year without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(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 Contestaudit or proceeding.
Appears in 1 contract
Contests. (a) After the Merger Effective TimeClosing Date, the Purchaser Buyer 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 Subsidiary Buyer or any Joint Venture Company which, if determined adversely to the taxpayer or after the lapse of time, could would be grounds for indemnification by the Seller under Section 7.0111.1, within fifteen (15) days after such commencement or the receipt of such demand or claim. Such notice to Seller shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Buyer or Company, any Subsidiary or any Joint Venture) describing the asserted Tax Liability liability in reasonable detail and shall include copies of any notice or other document received from any taxing Tax authority in respect of any such asserted Tax Liabilityliability. Any failure by the Purchaser If Buyer fails to give the Seller prompt notice of an asserted Tax Liability liability as required by this Section 7.0311.3, then, if Seller is precluded by the failure to give such notice from contesting the asserted Tax liability in formal proceedings before either the administrative or judicial forum, then Seller shall not limit the have any obligation of the Seller to indemnify the Purchaser, the Company, Buyer or Company for any Subsidiary or any Joint Venture for loss arising out of such asserted Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Sellerliability.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 controldirect, through counsel of its own choosingchoosing and at its own expense, any Contest audit, claim for refund and administrative or judicial proceeding involving any asserted Tax Liability liability with respect to which indemnity may be sought from under Section 11.1 (any such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a “Contest”); provided, however, that Buyer and Company and their duly appointed representatives shall have the right to participate in any such Contest, at their own expense, to the extent that such Contest relates to matters for periods after the Closing Date; and provided, further, that Seller pursuant shall obtain the consent of Buyer and Company prior to Section 7.01the resolution or settlement of any such dispute to the extent it relates to matters after the Closing Date, which consent shall not be unreasonably withheld or delayed. If the Seller elects to direct a Contest, the Seller shall within thirty (30) days of after receipt of the notice of asserted Tax Liability liability, Seller shall notify the Purchaser Buyer of its intent to do so, and the Purchaser Buyer shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures Company or its respective successor or successors to fully cooperate, at the Seller’s expense, in each phase of such Contest. If Seller chooses to direct the Contest, Buyer promptly shall empower and cause Company or its successor to empower (by power of attorney and such other documentation as may be necessary and appropriate) such representatives of Seller as it may designate to represent Buyer or Company or their respective successors in the Contest insofar as the Contest involves an asserted Tax for which Seller may be required to indemnify Buyer or Company under Section 11.1. If Seller elects not to direct the Contest, the Seller shall promptly fails to notify the Purchaser and the PurchaserBuyer of its election as herein provided or contests its obligation to indemnify under Section 11.1, the CompanyBuyer or Company may pay, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participatecontest, at its their own expense, in such asserted Tax liability without prejudice to any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlright of Buyer or Company to indemnification if otherwise entitled thereto hereunder.
(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. (i) Each Member's Stockholder (in the case of PCS, IPLLC, and in the case of Kerman, KCI) and their duly appointed representatives (collectively, the "MEMBER REPRESENTATIVE") shall have the authority to control any audit or examination by any taxing authority, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any liability of a Member for its Member PRE-CLOSING Periods; PROVIDED, HOWEVER, that no Member Representative shall, without the prior consent of UbiquiTel Parent, which consent shall not be unreasonably withheld, enter into any settlement of any contest or otherwise compromise any issue that would have a material adverse effect on the Tax benefits of UbiquiTel Parent or the Member for taxable years ending after the CLOSING DATE. UbiquiTel Parent and its 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) After neither UbiquiTel Parent nor its subsidiaries nor any of their duly appointed Representatives shall, without the Merger Effective Timeprior written consent of the Member Representative, enter into any settlement of any contest or otherwise compromise any issue that adversely affects the Purchaser 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 notify the Seller in writing of the proposed assessment or the commencement of forward all written notifications and other communications from any Tax authority received by UbiquiTel relating to any Tax audit or administrative or judicial other proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely relating to the taxpayer Tax liability of or after the lapse with respect to a Member. The failure of 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 UbiquiTel Parent to give the Seller prompt Member Representative such written notice of an asserted Tax Liability as required by this Section 7.03, shall not limit 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 obligation ability of the Seller Member Representative's Stockholder Group to indemnify the Purchaserdefend or dispute such examination, the Companyclaim, any Subsidiary settlement, adjustment or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Sellerrelated matter.
(biii) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”This Section 11.6(e) that relates to taxable periods ending on or before the date of the Merger, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the costs and expenses of the party assuming control of such Contest shall be paid first from any recovery before any payments are made subject to either party. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlprovisions of Article 12 of this Agreement.
(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. (a) After Whenever any Taxing Authority asserts a claim, makes an assessment, or otherwise disputes the Merger Effective Timeamount of Taxes for which Sellers are liable under this Agreement, the Purchaser Purchasers shall upon receipt of such assertion, promptly notify the Seller inform Sellers 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 Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, the Seller Sellers shall have the sole right, at its expense, right to direct control any resulting proceedings and control the conduct of, or pursue or settle, such Contest.
(c) With respect to Straddle Periods, the Seller may elect to direct determine whether 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or agree when to settle any claim pursuant such claim, assessment or dispute to the extent such audit proceedings or proceeding which would adversely determinations affect the other party amount of Taxes for such taxable period or a subsequent taxable period which Sellers may be liable under this Agreement; provided, however, that, without the written consent of the other partyPurchasers, which consent may shall not be unreasonably withheld. In , Sellers shall not settle any such Contestclaim, assessment or dispute if such settlement would reasonably be expected to adversely affect the costs and expenses 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 assuming control may participate in any resulting proceedings; (b) that portion of such Contest the proceedings shall be paid first 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 recovery before Taxing Authority that relates to Taxes for which any payments are made to either party. The Purchaser of the Spine Entities may participate, at its own expense, in any Contest in which the Seller assumes control, be liable and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlprovide Purchasers with a copy of all such claims and notices.
(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. (a) After the Merger Effective TimeClosing, each party to this Agreement (whether Buyer or the Purchaser Shareholder Representatives, as the case may be) shall promptly notify the Seller other party in writing of the proposed assessment any demand, claim or notice of the commencement of an audit received by such party from any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary Governmental Authority or any Joint Venture whichother Person with respect to Taxes for which such other party is liable pursuant to Section 8.02 or Section 8.03 of this Agreement; provided, if determined adversely however, that a failure to give such notice will not affect such other party’s rights to indemnification under Article VIII, except to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.01extent that such party is actually prejudiced thereby. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Ventureknown) describing the asserted Tax Liability in reasonable detail liability and shall include copies of the relevant portion of any notice or other document received from any taxing authority Governmental Authority or any other Person 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Sellerliability.
(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 Tax audit or administrative or judicial proceeding (a “Contest”) Contest that relates to taxable periods ending on or before Straddle Periods (as defined in Section 6.03 above), Buyer shall control the date conduct of such Tax Claim, but the Merger, the Seller 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 rightdiscretion, and at its expensetheir expense (payable from the Shareholder Representatives’ Holdback or pursuant to the Contribution Agreement, to direct and as applicable), may assume control of the conduct ofof such Tax Claim. Neither Buyer, or pursue or the Company nor any of the Subsidiaries shall settle, compromise and/or concede such Contest.
(c) With respect Tax Claim without the consent of the Shareholder Representatives, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer fails to Straddle Periodsassume 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 Seller may elect Shareholder Representatives shall have the right 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the costs Tax Claim and expenses of the party assuming control of such Contest shall be paid first from any recovery before any payments are made able to either party. The Purchaser may participatesettle, at its own expense, compromise and/or concede such Tax Claim in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controltheir sole discretion.
(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
Sources: Merger Agreement (Nn Inc)
Contests. (a) After Following the Merger Effective TimeClosing, the Purchaser shall promptly notify the Seller in writing control all Contests (as defined below) relating to Taxes 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 Subsidiary Company or any Joint Venture whichof its Subsidiaries, if determined adversely to the taxpayer or after the lapse of 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 except as otherwise provided 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) 10.4. In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) Contest that relates solely and exclusively to taxable periods ending on Pre-Closing Periods or before the date of the Mergerfor which Purchaser may otherwise seek indemnification from Seller under this Agreement; provided, the that Seller shall have acknowledged its obligation to indemnify Purchaser under this Article X, Seller shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, of such Contest.
(c) With respect , and Purchaser shall have the right, at its expense, to Straddle participate in such Contest. In the case of a Contest that relates to Pre-Closing Periods and Post-Closing Periods, provided Seller shall have acknowledged its obligation to indemnify Purchaser under this Article X, Seller shall have the Seller may elect to direct and controlright, through counsel of bearing its own choosingexpenses, any to jointly conduct such Contest involving any asserted Tax Liability with Purchaser with respect to Tax items for which indemnity Purchaser may be sought seek indemnification from the Seller pursuant to Section 7.01Seller. If the Seller elects chooses not to direct a control such Contest, the Seller shall within thirty (30) days of receipt have the right, at its expense, to participate in such Contest. The Party controlling a Contest for a Pre-Closing Period shall in any event keep the other Party informed of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase progress of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on provide the other handParty with copies of all material documents (including material notices, shall enter into any compromise or agree to settle any claim pursuant protests, briefs, written rulings and determinations and correspondence) pertaining to such audit or proceeding which would adversely affect and shall not settle such Contest without the other party for such taxable period or a subsequent taxable period without the Party’s advance written consent of the other partyconsent, which consent may shall not be unreasonably withheld, conditioned or delayed. In For purposes of this Agreement, a “Contest” is any such Contestaudit, the costs and expenses of the party assuming control of such Contest shall be paid first from administrative or judicial proceeding or other dispute with respect to any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause Tax matter that affects the Company and or any of its Subsidiaries, as the Subsidiaries to cooperate, in the defense against or compromise of any claim in any Contestcase may be.
Appears in 1 contract
Sources: Stock Purchase Agreement (New Media Investment Group Inc.)
Contests. If a notice of deficiency, proposed adjustment, assessment, audit, examination or other administrative or court proceeding, suit, dispute or other claim (aa “Tax Contest”) After the Merger Effective Timeshall be delivered, sent, commenced, or initiated to, by or against a Parent Group Member, the Purchaser Company or any Subsidiary by any taxing authority with respect to Taxes that results in or may result in Tax Losses or Expenses for which indemnification may be claimed against Shareholders and the DolEx Class B Shareholders under this Agreement, Parent shall promptly notify the Seller Shareholder Representative in writing of such Tax Contest; provided that the proposed assessment failure to so notify the Shareholder Representative shall not relieve Shareholders or the commencement DolEx Class B Shareholders of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchasertheir indemnification obligations hereunder, its Affiliates, the Company, any Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only except to the extent that such failure resulted prejudices the Shareholders or the DolEx Class B Shareholders defense of the Tax Contest. The Shareholders and the DolEx Class B Shareholders shall have the right to represent the Company and each Subsidiary’s interests and to employ counsel of their choice at their expense with respect to any such Tax Contest for which they are entirely liable; provided that the Shareholder Representative shall immediately notify Parent of the decision to take control of such Tax Contest; and Parent shall cause the Company and each Subsidiary to execute any powers of attorney or other documents or forms necessary in an economic detriment order to allow the Seller.
(b) Shareholders and the DolEx Class B Shareholders to control such Tax Contest and to settle any such Tax Contest. In the case of a any such Tax audit or administrative or judicial proceeding (a “Contest”) that relates , Parent shall also be entitled to taxable periods ending on or before the date of the Merger, the Seller shall have the sole right, participate at its expense, own expense in such Tax Contest. In the case of any Tax Contest relating to direct and control the conduct ofany Tax for any Straddle Period, or pursue or settle, such Contest.
(c) 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 any Tax Contest in which indemnity may 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), Parent, the Shareholders, and the DolEx Class B Shareholders shall each be sought from entitled to participate at their own expense in such Tax Contest to the Seller extent it relates to a Tax for which such party bears Losses or Expenses pursuant to Section 7.0110.1. If the Seller elects to direct a Contest, the Seller shall within thirty (30) days No party may settle or otherwise dispose of receipt of the notice of asserted any Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, Contest in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period manner without the written consent and approval of the other party, which consent may 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 enter into any settlement or other disposition of such ContestTax Contest prior to receiving the written consent of the Shareholder Representative, which consent will not be unreasonably withheld, conditioned or delayed. In no event, without the prior written consent of the Shareholder Representative, which shall not be unreasonably withheld, conditioned or delayed, shall Parent, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(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 each Subsidiary grant an extension of any claim applicable statute of limitations in respect of any ContestTax period ending on or prior to the Closing Date or any Straddle Period.
Appears in 1 contract
Contests. (a) After the Merger Effective TimeClosing, the Purchaser Purchasers shall promptly notify the Seller Sellers in writing of the any written notice of a proposed assessment or the commencement of claim made by any Tax authority in an audit or administrative or judicial proceeding proceeding, or of any demand or claim on the Purchaserotherwise, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely to the taxpayer or after the lapse of timesuccessful, could would be grounds for indemnification by the Seller Sellers under Section 7.01this Article VII ("Tax Claim"). Such If notice shall contain factual information (of a Tax Claim is not given to the extent known to Sellers promptly after receipt by the PurchaserPurchasers, its Affiliates, the Company, any Subsidiary or any Joint Venture) describing the asserted Tax Liability in reasonable detail to inform the Sellers of the nature of the Tax Claim, in each case taking into account the facts and shall include copies of any notice or other document received from any taxing authority in circumstances with respect of any to such asserted Tax Liability. Any failure by Claim, the Purchaser to give the Seller prompt notice of an asserted Tax Liability as required by this Section 7.03, Sellers shall not limit be liable to the obligation of the Seller to indemnify the PurchaserPurchasers, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such either Seller's position is actually prejudiced as a result of a failure resulted in an economic detriment to the Sellerso promptly notify or inform.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) Claim that relates to taxable periods ending on or before the date of the MergerClosing Date, the Seller Sellers shall have the sole right, right at its expense, their expense to direct participate in and control the conduct ofof all proceedings in connection with such Tax Claim (including selection of counsel), provided, however, that the Sellers shall not settle or pursue otherwise compromise such Tax Claim without the Purchasers' consent, which consent shall not be unreasonably withheld. If the Sellers do not elect to contest any such audit or settleproceeding, the Purchasers may defend the same in such Contestmanner as they may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Sellers setting forth the terms and conditions of settlement.
(c) With respect to Straddle Periodsissues relating to a potential adjustment for which both a Seller and a Purchaser, a Company or the Seller Subsidiary could be liable, (i) each party 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 participate in the Seller pursuant to Section 7.01. If the Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do soaudit or proceeding, and (ii) the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding shall be controlled by that party which would adversely affect bear the other burden of the greater portion of the sum of the adjustment, except that neither party for shall settle or otherwise compromise such taxable period or a subsequent taxable period adjustment without the written consent of the other party, which consent may shall not be unreasonably withheld. In The principle set forth in the preceding sentence shall govern also for purposes of deciding any such Contestissue that must be decided jointly (in particular, the costs and expenses choice of the party assuming control of such Contest shall be paid first from any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, judicial forum) in any Contest situations in which separate issues are otherwise controlled under this Article VII by the Seller assumes control, Purchasers and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlSellers.
(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. (a) After In the Merger Effective Timeevent Purchaser, the Purchaser shall promptly notify the Seller in writing of the proposed assessment Sellers or the commencement Former Tax Parent receives written notice of any Tax audit or audit, examination, claim, settlement, proposed adjustment, administrative or judicial proceeding proceeding, or of other matter (“Tax Claim”) related to any demand Pre-Closing Taxes, Transfer Taxes or claim on the Overlap Period Taxes, Purchaser, its AffiliatesSellers or Former Tax Parent, as the Company, any Subsidiary or any Joint Venture 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. 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 7.03case may be, shall not limit notify the obligation other Parties in writing as soon as reasonably practical (but in no event more than ten (10) Business Days) after receipt of the Seller to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 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 7.01notice. If the either Seller elects to direct a Contest, the Seller shall or Former Tax Parent notifies Purchaser in writing within thirty (30) days of Business Days following receipt of such written notice that they intend to exercise their rights pursuant to this Section 8.6, they shall be entitled to control the defense, prosecution, settlement or compromise of such Tax Claim, at their own expense. Purchaser shall take such action in contesting such Tax Claim as Sellers shall reasonably request from time to time, including the selection of counsel and experts and execution of powers of attorney. Purchaser shall not make any payments of such Tax Claim for at least thirty (30) days (or such shorter period as may be required by applicable Law) after giving the notice of asserted required by this Section 8.6, shall give the Sellers and Former Tax Liability notify Parent any information requested relating to such Tax Claim, shall give any Tax Authority any information requested by Sellers or Former Tax Parent relating to such Tax Claim, and otherwise shall cooperate with and make internal resources available to the Sellers and Former Tax Parent in good faith in order to effectively contest any such Tax Claim. Purchaser of its intent shall not settle or otherwise compromise any such Tax Claim with any Taxing Authority or prosecute such contest to a determination in court or other tribunal or initial or appellate jurisdiction unless instructed to do soso by the Sellers or Former Tax Parent. Any of the Sellers or Former Tax Parent may settle or otherwise compromise any such Tax Claim without Purchaser’s prior written consent, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase except that if as a result of such Contest. If settlement or compromise the Seller elects not to direct the ContestTaxes payable by Purchaser would be materially increased, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary none of Sellers or any Joint Venture shall assume control of Former Tax Parent may settle or compromise such Contest (at the matter without Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the prior written consent of the other partyconsent, which consent may shall not be unreasonably withheld; provided, however, that in the event Purchaser does not promptly consent to such settlement or compromise, Sellers may pay to Purchaser such settled or compromised amount and Purchaser shall agree to assume all obligations for such Tax Claim Liability. In connection with any proceeding taken with respect to such Contestmatters, (i) Sellers shall keep Purchaser informed of all material developments and events relating to such matters if involving a material liability for Taxes, and (ii) Purchaser shall have the 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. The Purchaser may participateright, at its own sole expense, to participate in any Contest in which the Seller assumes controlsuch proceedings. Purchaser shall cooperate with Sellers and Former Tax Parent by giving them and their representatives, on prior reasonable notice, reasonable access and the Seller may participatecooperation during normal business hours to all information, at its own expensebooks and records pertaining to Transfer Taxes, in any Contest in which the Purchaser assumes controlPre-Closing Taxes and Overlap Period Taxes.
(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. (a) After the Merger Effective TimeClosing, the Purchaser each party shall promptly notify the Seller other party 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, other party or its Affiliates, the Company, any Subsidiary or any Joint Venture Affiliates 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. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venturesuch party) describing the asserted Tax Liability 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 Liabilityliability. Any failure by the Purchaser If either party fails to give the Seller other party prompt notice of an asserted Tax Liability liability as required by this Section 7.03, then such party shall not limit the have any obligation of the Seller to indemnify the Purchaserfor any Loss arising out of such asserted Tax liability, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and but only to the extent that failure to give such failure resulted notice results in an economic actual detriment to the Sellersuch party.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the MergerClosing, the Seller shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, of such Contest.
(c) 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 liability with respect to which indemnity may be sought from the Seller pursuant to Section 7.01. If the Seller elects to direct a such Contest, the Seller shall within thirty sixty (3060) days of receipt of the notice of asserted Tax Liability liability notify the Purchaser Purchasers of its intent to do so, and the Purchaser Purchasers shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures Companies to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects to direct such Contest, then the Purchasers may participate in such Contest, at the Purchasers’ expense. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall Purchasers may assume control of such Contest (at the Purchaser’s Purchasers’ expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or If a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the costs and expenses of the party assuming Purchaser assumes control of such Contest shall be paid first from any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, in any Contest in which (whether because the Seller assumes controlelects not to assume control or because it is not entitled to control such Contest), and then the Seller may participate, at its own expense, in the Contest. Neither the Seller nor any Purchaser may settle or compromise any asserted liability with respect to any Contest in governed by this Section 7.03(c) without prior written consent of the other party, which the Purchaser assumes controlshall not be unreasonably withheld or delayed.
(d) The Purchaser Purchasers and the Seller agree to reasonably cooperate, and the Purchaser agrees agree to cause the Company and the Subsidiaries their Affiliates to reasonably cooperate, in the defense against or compromise of any claim in any Contest.
Appears in 1 contract
Sources: Stock Purchase Agreement (HLTH Corp)
Contests. (a) After the Merger Effective TimeClosing Date, 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, Purchaser or the Company, any Subsidiary or any Joint Venture Company which, if determined adversely to the taxpayer or after the lapse of time, could would be grounds for indemnification by the Seller under Section 7.01. Such notice shall contain factual information 7.01 (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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller"INDEMNIFICATION ITEM").
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”or part thereof) ("PROCEEDING") that relates solely to taxable periods ending on or before an Indemnification Item for which the date of the MergerSeller is exclusively liable under Section 7.01 (a "CONTEST") , the Seller shall have the sole right, at its expense, to direct and control the conduct ofof such Contest that relates solely to the Indemnification Item; PROVIDED, or pursue or settleHOWEVER, such Contest.that the Seller shall
(ci) With respect obtain the Purchaser's written consent to Straddle Periods, any advisors (including any law or accounting firm) retained by the Seller may elect to direct and control, through counsel of its own choosing, any Contest involving any asserted Tax Liability with respect to any Contest regarding any Indemnification Item, which indemnity may consent shall not be sought from unreasonably withheld or delayed, and which consent is deemed to have been given for KPMG, LLP and its affiliates and any successor firms, and Shearman & Sterling and any successor firms,
(ii) keep the Seller pursuant Purchaser informed of the progress of any Contest,
(iii) allow the Purchaser to Section 7.01. If review and comment on all materials to be submitted to any Governmental Authority in connection with any Contest,
(iv) provide the Seller elects to direct a 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, the Seller shall within thirty and allow Purchaser's representatives to participate in any Communications, and
(30v) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary settle or any Joint Venture shall assume control of such Contest compromise (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or agree offer to settle or compromise) any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period Contest without the written consent of the other partyPurchaser, which consent may shall not be unreasonably withheldwithheld or delayed. In However, for any such ContestContest that does not impact Taxes of the Purchaser, the costs and expenses LLC or their respective successors or Affiliates for periods after the Closing, the Purchaser will (a) not have any of the party assuming control of such Contest shall rights listed in subsections (i) through (v) above and (b) be paid first from deemed to have consented to any recovery before any payments are made to either partysettlement or compromise proposal by the Seller. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(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 Contestaudit 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) After 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 Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case event any Governmental Authority determines that Transmission ProviderOwner’s receipt of a Tax audit payments or administrative or judicial proceeding (a “Contest”) property constitutes income that relates is subject to taxable periods ending on or before the date of the Mergertaxation, the Seller Transmission ProviderOwner shall have the sole rightnotify Interconnection CustomerDeveloper, at its expensein writing, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days Calendar Days of receipt receiving notification of such determination by a Governmental Authority. Upon the timely written request by Interconnection CustomerDeveloper and at Interconnection CustomerDeveloper’s sole expense, Transmission ProviderOwner shall appeal, protest, seek abatement of, or otherwise oppose such determination. Upon Interconnection CustomerDeveloper’s written request and sole expense, Transmission ProviderOwner shall file a claim for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such a determination. Transmission ProviderOwner reserves the right to make all decisions with regard to the prosecution of such appeal, protest, abatement or other contest, including the selection of counsel and compromise or settlement of the notice claim, but Transmission ProviderOwner shall keep Interconnection CustomerDeveloper informed, shall consider in good faith suggestions from Interconnection CustomerDeveloper about the conduct of asserted Tax Liability notify the Purchaser of its intent to do socontest, and shall reasonably permit Interconnection CustomerDeveloper or an Interconnection CustomerDeveloper representative to 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 prosecuting such appeal, protest, abatement or other contest. Transmission ProviderOwner will not be required to appeal or seek further review beyond one level of judicial review. At any time during the Purchaser contest, Transmission ProviderOwner may agree to a settlement either with Interconnection CustomerDeveloper’s consent or after obtaining written advice from nationally-recognized tax counsel, selected by Transmission ProviderOwner, but reasonably acceptable to Interconnection CustomerDeveloper, that the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection CustomerDeveloper’s obligation shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, be based on the one handamount of the settlement agreed to by Interconnection CustomerDeveloper, nor or if a higher amount, so much of the Seller, on the other hand, shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without settlement that is supported by the written consent advice from nationally- recognized tax counsel selected under the terms of the other party, which preceding sentence. Any settlement without Interconnection CustomerDeveloper’s consent may not be unreasonably withheld. In any or such Contest, the costs and expenses of the party assuming control of such Contest shall be paid first written advice will relieve Interconnection CustomerDeveloper from any recovery before any payments are made obligation to either party. The Purchaser may participate, indemnify Transmission ProviderOwner for the tax at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, issue in the defense against or compromise of any claim in any Contestcontest.
Appears in 1 contract
Contests. (a) After the Merger date of the Effective Time, the Purchaser Parent shall promptly notify the Seller Equityholders’ Representative in writing of the any written notice of a proposed assessment adjustment or the commencement of any Tax claim in an audit or administrative or judicial proceeding involving Parent or of any demand the Company or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture Subsidiaries which, if determined adversely to the taxpayer or after the lapse of timetaxpayer, could would be grounds for indemnification by the Seller under Section 7.01. Such Article IX; provided, however, that a failure to give such notice shall contain factual information (will not affect Parent's right to indemnification thereunder except to the extent known to the Purchaserextent, its Affiliatesif any, that, but for such failure, the Company, any Subsidiary or any Joint Venture) describing Equity Holders could have avoided the asserted Tax Liability 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Sellerquestion.
(b) In the case of a Tax an audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the MergerEffective Time, provided that the Equityholders’ Representative on behalf of all Equity Holders acknowledges in writing the Equity Holders’ liability under this Agreement to hold Parent and the Surviving Corporation and its Subsidiaries harmless against the full amount of any adjustment that may be made as a result of such audit or proceeding, and provided further that such audit or proceeding relates solely to a potential adjustment for which the Equityholders’ Representative has acknowledged the Equity Holders’ liability and the issue underlying the proposed adjustment if resolved would not materially prejudice the Surviving Corporation or its Subsidiaries from taking a contrary position for any period ending after the date of the Effective Time with respect to such recurring issue, the Seller Equityholders’ Representative shall have the sole rightright at the Equity Holders’ expense to participate in and control the conduct of such audit or proceeding. The Equityholders’ Representative shall keep Parent informed of the progress of any such audit or proceeding, and Parent also may participate in any such audit or proceeding at its expense. If the Equityholders’ Representative does not assume the defense of any such audit or proceeding, Parent may defend the same in such manner as it may deem appropriate at its expense, to direct and control the conduct ofincluding, but not limited to, settling such audit or pursue or settle, such Contestproceeding.
(c) 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such an audit or proceeding that relates to a potential adjustment for which would adversely affect the other party for such taxable period Equity Holders are liable and as to which the second proviso set forth in Section 10.3(b) is not satisfied, (i) the Equityholders’ Representative may participate in the audit or a subsequent taxable period without proceeding at its expense provided that the written consent of first proviso set forth in Section 10.3(b) is satisfied, and (ii) the other party, which consent may not be unreasonably withheld. In any such Contest, the costs and expenses of the party assuming control of such Contest audit or proceeding shall be paid first from any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlcontrolled by Parent.
(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. (a) After the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing upon receipt by Purchaser or the Company of written notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments which may materially affect the tax liabilities of the proposed assessment or Company for which Seller would be required to indemnify Purchaser pursuant to Section 5.3(a). Seller shall have the commencement of sole right to represent the Company's interests in any Tax tax audit or administrative or judicial court proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates relating to taxable periods ending on or before the date of the MergerClosing Date, the Seller shall have the sole right, at its expense, and 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 employ counsel of its choice at its own choosingexpense. Seller shall not be entitled to settle, either administratively or after the commencement of litigation, 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which for Taxes that would adversely affect the other party liability for such taxable Taxes of Purchaser or the Company for any period or a subsequent taxable period after the Closing Date without the prior written consent of the other party, which Purchaser; provided that such consent may shall not be unreasonably withheld. In withheld or delayed and shall not be necessary to the extent that Seller has indemnified Purchaser against the effect of any such Contest, the costs and expenses of the party assuming control of such Contest settlement. Seller shall be paid first from any recovery before any payments are made entitled to either party. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(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 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 5.3(a) and if the entire amount of such tax claim is subject to indemnification by Seller pursuant to Section 5.3(a), with the written consent of Purchaser (which shall not be unreasonably withheld or delayed), and at Seller's sole expense, Seller may assume the entire defense of such tax claim. Neither Purchaser nor the Company may agree to settle any ContestTax claim for the portion of the year or period ending prior to or on the Closing Date which may be the subject of indemnification by Seller under Section 5.3(a) without the prior written consent of Seller; provided that such consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Contests. (a) After the Merger Effective TimeClosing, Buyer or Stockholders, as the Purchaser case may be, shall promptly notify the Seller other Party in writing of the proposed assessment or the commencement of any Tax audit audit, examination or administrative or judicial proceeding or of any demand claim or claim on the Purchaser, its Affiliates, the Company, any Subsidiary other proposed change or adjustment of which it or any Joint Venture of its Affiliates has been informed in writing by any Tax authority which, if determined adversely to the taxpayer taxpayer, may result in liability of the other Party under Article VII (each, a "Tax Claim") describing in reasonable detail the nature of the Tax Claim and including copies of any notices or after other documents received from the lapse of timeTax authority; provided, could be grounds for however, that the failure to timely give such notice will not affect the indemnified party's right to indemnification by the Seller under Section 7.01. Such notice shall contain factual information (Article VII except to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary indemnifying party is materially prejudiced by such delay 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Selleromission.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) Claim that relates to taxable Tax periods ending on or before the date of the MergerClosing Date, the Seller Stockholders shall have the sole right at their expense to participate in and control the conduct of any audit or proceeding, but only to the extent that such audit or proceeding relates to a potential adjustment for which Stockholders may be liable; Buyer also may participate in any such audit or proceeding. If Stockholders do not assume the defense of any such audit or proceeding within 30 business days after Buyer gives written notice of such Tax Claim to the Stockholders, Buyer may defend the same in such manner as it may deem appropriate.
(c) In the case of a Tax Claim that relates to an Interim Tax Period, the Parties shall jointly control any audit or proceeding, and there shall be no settlement with respect thereto without the prior written consent of both such parties, which consent shall not unreasonably be withheld.
(d) In the event that issues relating to a potential adjustment for which Stockholders may be liable are required to be dealt with in the same audit or proceeding as separate issues relating to a potential adjustment for which Buyer may be liable, Stockholders shall have the right, at their expense, to control the audit or proceeding with respect to the former issues, and Buyer shall have the right, at its expense, to direct and control the conduct of, audit or pursue or settle, such Contest.
(c) 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 proceeding 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 Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controllatter issues.
(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. (a) After the Merger Effective Time, the The Purchaser shall will promptly notify the Seller in -------- writing upon receipt by the Purchaser, any of its Affiliates or the Company of notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments which may materially affect the tax liabilities of the proposed assessment or Company for which the commencement of Seller would be required to indemnify the Purchaser pursuant to Section 4.08(A). The Seller will have the right to --------------- represent the Company's interests in any Tax tax audit or administrative or judicial court proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates relating to taxable periods ending on or before the date Closing Date, and to employ counsel of the Mergerits choice at its own expense. Nonetheless, the Seller shall have not be entitled to settle any claim for Taxes that would materially adversely affect 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt liability for Taxes of the notice Purchaser or any of asserted Tax Liability notify the Companies for any period after the Closing Date without the prior written consent of the Purchaser of its intent (which consent shall not be unreasonably withheld or delayed, but will not be required to do so, and the extent that the Sellers have indemnified the Purchaser shall cooperate and shall cause against the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase effects of any such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expensesettlement). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or agree will be entitled to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in the defense of any Contest claim for Taxes for a year or period ending after the Closing Date that may be the subject of indemnification by the Seller pursuant to Section 4.08(A) and, with the written consent of the Purchaser (which consent --------------- shall not be unreasonably withheld or delayed), and at its sole expense, may assume the entire defense of such tax claim. Neither the Purchaser nor the Company may agree to settle any tax claim for the portion of the year or period ending on the Closing Date that may be the subject of indemnification by the Seller under Section 4.08(A) without the prior written consent of the Seller, --------------- which consent shall not be unreasonably withheld or delayed. In addition, the Seller will promptly notify the Purchaser in writing upon receipt by the Seller or any of its subsidiaries, including the Company, of notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments which may materially affect the tax liabilities of the Company for which the Seller assumes controlPurchaser would be liable pursuant to Section 4.08(A) or (B). The Purchaser will have the right to represent the ---------------------- 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 its own expense. Nonetheless, the Purchaser shall not be entitled to settle any claim for Taxes that would materially adversely affect the liability for Taxes of the Seller may or the Company for any period after the Closing Date without the prior written consent of the Seller (which consent shall not be unreasonably withheld or delayed). The Purchaser will be entitled to participate, at its own expense, in the defense of any Contest in claim for Taxes for a year or period ending after the Closing Date for which the Purchaser assumes control.
may be liable pursuant to Section 4.08(A) or (dB) The Purchaser and ---------------------- and, with the written consent of the Seller (which consent shall not be unreasonably withheld or delayed), and at its sole expense, may assume the entire defense of such tax claim. Neither the Seller nor any of its subsidiaries may agree to cooperate, and settle any tax claim for the portion of the year or period ending on the Closing Date for which the Purchaser agrees may be liable pursuant to cause Section 4.08(A) or (B) without the Company and prior written consent of the Subsidiaries to cooperatePurchaser, in the defense against ---------------------- which consent shall not be unreasonably withheld or compromise of any claim in any Contestdelayed.
Appears in 1 contract
Contests. (a) After the Merger Effective TimeClosing Date, the Purchaser shall promptly notify the Seller Seller, or Seller, CLAC, or FGWLA shall promptly notify Purchaser, in writing of any written notice of a proposed assessment, audit, examination or claim in a Tax Contest of or relating to Purchaser, Seller, the proposed assessment Seller Subsidiaries, the Transferred Assets 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 Subsidiary or any Joint Venture Business which, if determined adversely to the taxpayer or after the lapse of timetaxpayer, could would be grounds for indemnification by under this Article XII; provided, however, that a failure to give such notice will not affect the Seller rights of a party to indemnification under Section 7.01. Such notice shall contain factual information (this Agreement except to the extent known to the Purchaserextent, its Affiliates(i) if any, that, but for such failure, the Company, any Subsidiary Tax Indemnifying Party could have avoided all 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 a portion of the Seller to indemnify the Purchaser, the Company, any Subsidiary Tax liability in question or any Joint Venture for such Tax Liability unless and only to the extent that (ii) such failure resulted in an economic detriment to otherwise actually materially prejudices the SellerTax Indemnifying Party.
(b) In the case of a Tax audit or administrative or judicial proceeding Contest that (a “Contest”i) that relates to taxable periods ending on or before the date of Closing Date or (ii) relates to a liability for Taxes for which Seller is reasonably likely to indemnify Purchaser or the MergerSeller Subsidiaries pursuant to this Agreement or the Ancillary Agreements, the Seller shall have the sole right, right at its expenseexpense to participate in, to direct and control the conduct of, and, subject to Purchaser’s consent pursuant to Section 12.04(c), settle such Tax Contest. Purchaser shall control all other Tax Contests and have the right to participate in all Tax Contests (including with respect to which Seller possesses the right to control) which are reasonably likely to result in an adverse material effect to Purchaser, any Affiliate of Purchaser or pursue or settle, such Contestthe Seller Subsidiaries.
(c) With respect to Straddle PeriodsNone of Purchaser, 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control Affiliate of such Contest (at the Purchaser’s expense). The either, nor Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Affiliate of Seller, on the other hand, shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding any Tax Contest which would adversely affect the other party for such taxable period or a subsequent taxable period any year without the written consent of the other party, which consent may not be unreasonably withheld, conditioned or delayed. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to reasonably cooperate, and the Purchaser agrees to cause the Company and the Seller Subsidiaries to reasonably cooperate, in the defense against or compromise of any claim in any Tax Contest.
Appears in 1 contract
Contests. (a) After the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing -------- upon receipt by Purchaser or the Subject Company of notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments which may materially affect the tax liabilities of the proposed assessment or Subject Company for which Seller would be required to indemnify Purchaser pursuant to Section 4.2(a). Seller shall have the commencement of sole right to represent the Subject Company's interests in any Tax tax audit or administrative or judicial court proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates relating to taxable periods ending on or before the date of the MergerClosing Date, the Seller shall have the sole right, at its expense, and 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 employ counsel of its choice at its own choosingexpense. Seller shall not be entitled to settle, either administratively or after the commencement of litigation, 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which for Taxes that would materially adversely affect the other party liability for such taxable Taxes of Purchaser or the Subject Company for any period or a subsequent taxable period after the Closing Date without the prior written consent of the other party, which Purchaser; provided that such consent may shall not be unreasonably withheld. In withheld or delayed and shall not be necessary to the extent that Seller has indemnified Purchaser against the effect of any such Contest, the costs and expenses of the party assuming control of such Contest settlement. Seller shall be paid first from any recovery before any payments are made entitled to either party. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(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 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 4.3(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 ContestTax claim for the portion of the year or period ending prior to or on the Closing Date which may be the subject of indemnification by Seller under Section 4.3(a) without the prior written consent of Seller; provided that such consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nevada Gold & Casinos Inc)
Contests. (a) After Each party hereto entitled to indemnification pursuant to Section 8.4 or Section 8.5 (a “Tax Indemnified Person”) agrees to give written notice to the Merger Effective Timeindemnifying Person (the “Tax Indemnitor”) of any written notice received by the Tax Indemnified Person or an Affiliate of such Tax Indemnified Person (including, in the case where the Purchaser is the Tax Indemnified Person, the Purchaser shall promptly notify Acquired Companies) which involves the Seller in writing assertion of the proposed assessment any claim, or the commencement of any audit, suit, action or proceeding (collectively, a “Tax audit Claim”) in respect of which indemnity may be sought within ten (10) Business Days of such receipt or administrative such earlier time as would allow the Tax Indemnitor to timely respond to such Tax Claim. Notwithstanding the foregoing, no delay or judicial proceeding or deficiency on the part of the Tax Indemnified Person in so notifying the Tax Indemnitor will relieve the Tax Indemnitor of any demand Liability or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller obligation under Section 7.01. Such notice shall contain factual information (this Agreement except to the extent known the Tax Indemnitor’s ability to defend such claim has been materially prejudiced as a result of the delay or other deficiency. The Tax Indemnified Person will give the Tax Indemnitor such information with respect to the Purchaser, its Affiliates, Tax Claim as the Company, any Subsidiary or any Joint Venture) describing the asserted Tax Liability Indemnitor may reasonably request. Such written notice shall describe 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 facts constituting 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 Subsidiary or any Joint Venture basis for such Tax Liability unless Indemnitor’s interests in such Tax Claim, the nature of the relief sought, and only to the extent that such failure resulted in an economic detriment to amount of the Sellerclaimed Losses (including Taxes).
(b) In the case of a The Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participateIndemnitor may, at its own expense, participate in and, upon notice to the Tax Indemnified Person, assume control of the defense of any Contest in Tax Claim for which it is the Seller Tax Indemnitor. If the Tax Indemnitor assumes control, and it will have the Seller may participateright to control the defense of the Tax Claim; provided, however, that the Tax Indemnitor shall not concede or settle any such Tax Claim without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed. In no case will a Tax Indemnified Person settle or otherwise compromise a Tax Claim without the Tax Indemnitor’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. The Tax Indemnified Person, at its own expense, shall be entitled to fully participate in all proceedings, meetings and calls, and receive copies of all communications with respect to any Contest in Tax Claims controlled by Seller.
(c) If a Tax Claim potentially involves some Taxes for Pre-Closing Tax Periods for which Seller would be required to indemnify the Purchaser assumes controlpursuant to Section 8.4 and other Taxes for Pre-Closing Tax Periods for which Seller would not be required to indemnify the Purchaser, then, for purposes of this Section 8.7 only, Seller will be the Tax Indemnitor and the Purchaser will be the Tax Indemnified Person as to those Tax Claims for which Seller is exclusively liable pursuant to Section 8.4 and, with respect to other Tax Claims, Seller and the Purchaser shall jointly control the defense of such Tax Claim.
(d) The Purchaser and Tax Indemnitor may discharge, at any time, its indemnity obligations by paying the Tax Indemnified Person the amount of the applicable indemnifiable Loss, calculated on the date of such payment.
(e) Notwithstanding any provision to the contrary herein, the Seller agree to cooperateshall have sole control over, and the Purchaser agrees shall have no right to cause the Company and the Subsidiaries control or participate in, any Tax Claim relating to cooperatea consolidated, in the defense against combined, unitary, affiliated or compromise similar Tax or Tax Return that includes Parent or any Subsidiary of any claim in any ContestParent.
Appears in 1 contract
Sources: Stock Purchase Agreement (Volt Information Sciences, Inc.)
Contests. (a) After Whenever any taxing authority asserts a claim, makes an assessment, or otherwise disputes the Merger Effective Timeamount of Taxes owed by any Company or Company Subsidiary for which Sellers are or may be liable under this Agreement, the Purchaser Buyer shall promptly notify upon learning of such claim inform Sellers, and Sellers shall have the Seller in writing 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 would materially affect the amount of Taxes for which Sellers are liable under this Agreement; PROVIDED, that Sellers shall not enter into any such settlement without the consent of Buyer, which consent shall not be unreasonably withheld, if such settlement could affect the amount of Taxes for which Buyer is liable under this Agreement. Whenever any Taxing Authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which Buyer is liable under this Agreement, Sellers shall promptly upon learning of such claim inform Buyer, and Buyer shall have the right to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or dispute to the extent such proceedings would materially affect the amount of Taxes for which Buyer is liable under this Agreement; PROVIDED, that Buyer shall not enter into any such settlement without the consent of the proposed assessment or affected Seller, which consent shall not be unreasonably withheld, if such settlement could affect the commencement amount of Taxes for which Sellers are liable under this Agreement. With respect to the Worldwide Companies and the Subsidiaries of the Worldwide Companies, for a period of six years after the Worldwide Closing, and, with respect to Compass Australia and the Australian Business, for a period of six years after the Australia Closing, and, if at the expiration thereof any Tax tax audit or administrative or judicial proceeding is in progress or the applicable statute of any demand or claim on the Purchaserlimitations has been extended in writing, its Affiliates, the Company, any Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that longer period as such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax tax audit or administrative or judicial proceeding (a “Contest”) that relates is in progress or such statutory period has been agreed to taxable periods ending on or before the date of the Mergerbe extended, the Seller shall have the sole rightBuyer shall, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Companies and Company Subsidiaries to maintain and make available to Lend Lease U.S. and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint VentureSellers, on the one handreasonable request of Lend Lease U.S. or the Sellers, nor copies of any and all information, working papers, books and records used in the Seller, on preparation of or relating to the other hand, shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent Tax Returns of each of the other partyCompanies and Company Subsidiaries. After such period, which consent may not be unreasonably withheld. In any such ContestBuyer, the costs Companies and expenses of the party assuming control Company Subsidiaries may dispose of such Contest shall be paid first from any recovery before any payments are made to either party. The Purchaser may participateinformation, at its own expenseworking papers, in any Contest in which the Seller assumes control, books and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlrecords.
(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. (a) After the Merger Effective TimeClosing, the Purchaser shall promptly notify the Seller in writing upon receipt of the proposed assessment a correspondence or the commencement a notice from a Taxing Authority of any Tax an audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture whichinquiry that, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.017.01 or Section 9.02. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary Affiliates or any Joint Ventureof the Acquired Companies) describing the asserted Tax Liability liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority Taxing Authority in respect of any such asserted Tax Liabilityliability. Any failure by If the Purchaser fails to give the Seller prompt notice within 30 days of an receiving the correspondence or notice from a Taxing Authority, then the Seller shall not have any obligation to indemnify for any loss arising out of such asserted Tax Liability as required by this Section 7.03liability, shall not limit the obligation of the Seller to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and but only to the extent that the Seller is prejudiced by such failure resulted in an economic detriment to the Sellergive such notice.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the MergerPre-Closing Periods (other than a Contest described in Section 7.03(c)), the Seller shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, of such Contest.
(c) With respect to Straddle PeriodsPeriods (other than a Contest described in Section 7.03(d)), the Seller may elect to direct and control, through counsel of its own choosing, any Contest involving any asserted Tax Liability 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 Seller shall within thirty (30) 30 days of receipt of the notice of asserted Tax Liability liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures Acquired Companies to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall of the Acquired Companies may assume control of such Contest (at the Purchaser’s expense). The , and the Purchaser shall provide the Seller shall fully cooperate in a timely and reasonably detailed summary of each phase of such Contest. Neither However, in such case, none of the Purchaser, the Company, any Subsidiary Purchaser or any Joint Venture, on of the one hand, nor the Seller, on the other hand, shall enter into Acquired Companies may settle or compromise any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period asserted liability without the prior written consent of the other partySeller; provided, which however, that consent may to settlement or compromise shall not be unreasonably withheld, conditioned or delayed. In any such Contestevent, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any a Contest described in which the Purchaser assumes controlthis Section 7.03(c).
(d) Notwithstanding anything to the contrary in this Agreement, the Seller shall have the exclusive right to control in all respects, and neither the Purchaser nor any of its Affiliates shall be entitled to participate in, any Contest with respect to (i) any Tax Return of the Seller or any of its Subsidiaries (other than the Acquired Companies) and (ii) any Tax Return of a consolidated, combined, unitary, or affiliated Tax group of which the Seller is a member.
(e) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries Acquired Companies to cooperate, in the defense against or compromise of any claim in any Contest.
(f) Notwithstanding anything to the contrary in this Agreement, this Section 7.03 shall control with respect to any Contest.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (S&P Global Inc.)
Contests. (a) After the Merger Effective TimeClosing, the Purchaser shall promptly notify the Seller in writing of the any written proposed assessment assessment, or the any commencement of any Tax audit or administrative or judicial proceeding proceeding, or of any written demand or claim on the Purchaser, any of its Affiliates, the Company, Company or any Subsidiary or any Joint Venture 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. Such notice shall contain factual information (to the extent known to the Purchaser, any of its Affiliates, the Company, any Subsidiary Company or any Joint VentureSubsidiary) describing the asserted Tax Liability 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 Liabilityliability. Any failure by If the Purchaser fails to give provide the Seller such prompt notice notice, such failure shall not release the Seller from any of an its obligations to indemnify for any Loss arising out of such asserted Tax Liability as required by this Section 7.03liability, shall not limit the obligation of the Seller to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only except to the extent that due to such failure resulted in an economic detriment to the Seller.Seller was actually prejudiced. 49
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates solely to taxable periods ending on or before the date of the MergerExcluded Taxes, the Seller shall have the sole right, at its expense, to direct and control the conduct ofof 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, the Company, any Subsidiary or pursue their Affiliates in a taxable period or settleperiods following the Closing Date, the Seller shall not settle or compromise any asserted Tax liability without the prior written consent of the Purchaser; provided, however, that consent shall not be unreasonably withheld, delayed or conditioned; 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 ContestContest after such consent is withheld.
(c) With respect to Straddle Periods, the Seller may elect to direct and control, through counsel of its own choosing, the Purchaser shall jointly control any Contest involving any asserted Tax Liability liability. Neither party may settle or compromise 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 Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period Straddle Periods without the prior written consent of the other party; provided, which however, that consent may to settlement or compromise shall not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controldelayed 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) After the Merger Effective TimeClosing, the Purchaser shall promptly notify the Seller Representative in writing of any demand, claim or notice received by Purchaser or any Affiliate thereof (including the proposed assessment Company) from any Governmental Body or any other Person relating to the commencement of any Tax audit Tax-related action, audit, claim for 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 demand Tax or claim on the Purchaserrelated 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 7.4(h)) (each, the Company, any Subsidiary or any Joint Venture which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.01an “Other Tax Action”). Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Ventureknown) describing the asserted Tax Liability in reasonable detail liability and shall include copies of any notice or other document received from any taxing authority Governmental Body or any other Person in respect of any such asserted Tax Liability. Any failure liability.
(ii) The Seller Representative shall have the right (at its election and at its own expense and by the Purchaser counsel and representatives of its own choosing) to give control the defense and resolution all Seller Tax Actions by providing written notice to the Purchaser. With respect to any Seller Tax Action controlled by the Seller prompt notice of an asserted Tax Liability as required by this Section 7.03Representative, shall not limit the obligation of (i) the Seller Representative may not settle any Seller Tax Action without the prior written consent of Purchaser (which consent Purchaser will not be unreasonably withhold, conditioned or delayed), (ii) the Seller Representative will keep Purchaser reasonably informed of all material communications with any Governmental Body, and (iii) with respect to indemnify the Purchaser, any Seller Tax Action that is an Other Tax Action or which is reasonably likely to result in any Tax imposed directly on the Company, Purchaser (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 Subsidiary proceeding with respect to Tax Action that Seller Representative does not elect to control pursuant to this Section 7.4(d) or any Joint Venture for such Tax Liability unless and only that Seller ceases to the extent that such failure resulted in an economic detriment to the Seller.
control (b) In the case of a Tax audit or administrative or judicial proceeding (each, a “ContestPurchaser Controlled Action”) that relates to taxable periods ending on or before ). Purchaser shall control the date conduct of the Mergersuch Purchaser Controlled Action, the but Seller shall have the right to participate in such Purchaser Controlled Action at its own expense and, with the written consent of Purchaser, in Purchaser’s sole rightdiscretion, and at its expense, to direct and Seller may assume control of the conduct ofof such Tax Action. Purchaser shall not (and shall not cause or permit) the resolution or settlement of any Purchaser Controlled Action without the prior written consent of the Seller Representative (such consent not to be unreasonably withheld, conditioned or pursue 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 settle, fails to defend or contest any such Contest.
(c) With respect to Straddle PeriodsTax Action in good faith or by appropriate proceeds, the Seller may elect Representative shall have the right (but not the obligation) 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the costs Tax Action and expenses of the party assuming control of such Contest shall be paid first from any recovery before any payments are made able to either party. The Purchaser may participatesettle, at compromise and/or concede such Tax Action in its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlsole discretion.
(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. (a) After 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 Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case event any Governmental Authority determines that Distribution Provider’s receipt of a Tax audit payments or administrative or judicial proceeding (a “Contest”) property constitutes income that relates is subject to taxable periods ending on or before the date of the Mergertaxation, the Seller Distribution Provider shall have the sole rightnotify Interconnection Customer, at its expensein writing, 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days Calendar Days of receipt receiving notification of such determination by a Governmental Authority. Upon the timely written request by Interconnection Customer and at Interconnection Customer's sole expense, Distribution Provider may appeal, protest, seek abatement of, or otherwise oppose such determination. Upon Interconnection Customer's written request and sole expense, Distribution Provider may file a claim for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such a determination. Distribution Provider reserves the right to make all decisions with regard to the prosecution of such appeal, protest, abatement or other contest, including the selection of counsel and compromise or settlement of the notice claim, but Distribution Provider shall keep Interconnection Customer informed, shall consider in good faith suggestions from Interconnection Customer about the conduct of asserted Tax Liability notify the Purchaser of its intent to do socontest, and shall 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 appeal, protest, abatement or other contest. At any time during the Purchaser contest, Distribution Provider may agree to a settlement either with Interconnection Customer's consent or after obtaining written advice from nationally-recognized tax counsel, selected by Distribution Provider, but reasonably acceptable to Interconnection Customer, that the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection Customer's obligation shall cooperate and shall cause be based on the Companyamount of the settlement agreed to by Interconnection Customer, or if a higher amount, so much of the Subsidiaries and settlement that is supported by the Joint Ventures to fully cooperate, at written advice from nationally-recognized tax counsel selected under the Seller’s expense, in each phase terms of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense)preceding sentence. The Seller settlement amount shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, be calculated on a fully-grossed-up basis to cover any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent related cost consequences of the other party, which current tax liability. Any settlement without Interconnection Customer's consent may not be unreasonably withheld. In any or such Contest, the costs and expenses of the party assuming control of such Contest shall be paid first written advice will relieve Interconnection Customer from any recovery before any payments are made obligation to either party. The Purchaser may participate, indemnify Distribution Provider for the tax at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, issue in the defense against or compromise of any claim in any Contestcontest.
Appears in 1 contract
Sources: Clustering Large Generator Interconnection Agreement and Distribution Service Agreement
Contests. (a) After If an audit is commenced, an adjustment is proposed or any other claim is made by any Taxing Authority with respect to a Tax liability of the Merger Effective TimeCompany or the Subsidiary relating to a Pre-Closing Tax Period for which the Seller could be liable under Article XII, the Purchaser Buyer shall promptly notify the Seller in writing of such audit or such proposed adjustment or such claim. If the proposed assessment Seller so requests and at the Seller's expense, Buyer shall cause the relevant entity (Buyer, the Company or the commencement Subsidiary, or any of their respective successors) to contest such claim on audit or by appropriate claim for refund or credit of Taxes or in a related administrative or judicial proceeding, and shall permit the Seller, at its option and expense, to control the prosecution and settlement of any Tax such audit or refund claim or related administrative or judicial proceeding but only with respect to those specific matters that could reasonably affect the Tax liability of the Seller, including any liability hereunder, or of any demand or claim on the Purchasertheir right to payment; and, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification where reasonably deemed necessary by the Seller under Section 7.01. Such notice and in accordance with the foregoing, Buyer shall contain factual information (cause the relevant entity 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 authorize by appropriate powers of any notice or other document received from any taxing authority in respect of any attorney such asserted Tax Liability. Any failure by the Purchaser to give persons as the Seller prompt notice of an asserted Tax Liability as required by this Section 7.03, shall not limit the obligation of the Seller designate to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for represent such Tax Liability unless and only entity with respect to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or refund claim or related administrative or judicial proceeding (a “Contest”) that and to settle or otherwise resolve any such proceeding but only as it specifically relates to taxable periods ending on or before such matters for which Seller confirms in writing its sole liability for the date of the Merger, the Seller shall have the sole right, Tax matters 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 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense)issue. The Seller shall fully cooperate in each phase keep Buyer reasonably informed of the progress of any such Contestclaim, action or proceeding and shall permit Buyer to participate therein, at Buyer's expense. Neither Buyer shall further execute and deliver, or cause to be executed and delivered, to the Purchaser, Seller or its designee all instruments and documents reasonably requested by the Company, any Subsidiary Seller to implement the provisions of this Section 8.8(c). Any refund of Taxes obtained by Buyer or 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 affected entity pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the costs and expenses of the party assuming control of such Contest this Section 8.8(c) shall be paid first from any recovery before any payments are made promptly to either party. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and to the extent the refund relates to Taxes funded by Seller may participate, at its own expense, in any Contest in which after Closing or to the Purchaser assumes controlextent payable to Seller under Section 8.8(b).
(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. (a) After Tyler agrees to give written notice to the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing Stockholders’ Representative of the proposed assessment receipt of any written notice by Socrata or the Surviving Corporation, Tyler, or any of Tyler’s Affiliates which involves the assertion of any claim, or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on the PurchaserProceeding, its Affiliates, the Company, any Subsidiary or any Joint Venture 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. 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 which 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the Merger, 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 counsel of its own choosing, any Contest involving any asserted Tax Liability with respect to which indemnity may be sought from the Seller by Tyler pursuant to Section 7.01this ARTICLE VII (a “Tax Claim”); provided that failure to comply with this provision shall not affect Tyler’s right to indemnification hereunder. If Except as provided below, Tyler shall control the Seller elects to direct a Contestcontest or resolution of any Tax Claim; provided, however, that Tyler shall obtain the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the prior written consent of the other party, Stockholders’ Representative (which consent may shall not be unreasonably withheld. In , conditioned, or delayed) before entering into any settlement of a claim or ceasing to defend such Contestclaim; and, provided further, that the Stockholders’ Representative shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, the costs fees and expenses of the party assuming control of such Contest which separate counsel shall be paid first from any recovery before any payments are made to either partyborne solely by the Non-Series C Stockholders, Participating Warrantholders, and Participating Optionholders. The Purchaser may participate, at its own expense, in Stockholders’ Representative shall control any Contest in Tax Claim with respect to the federal income tax returns of Socrata or with respect to any other Tax Return for which the Seller assumes controlNon-Series C Stockholders, Participating Warrantholders, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree Participating Optionholders could have a liability pursuant to cooperate, and the Purchaser agrees this ARTICLE VII. Tyler shall be entitled to cause the Company and the Subsidiaries to cooperate, participate in the defense against or compromise of any such Tax Claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Tyler. The Stockholders’ Representative shall consult with Tyler before entering into any settlement of such claim or ceasing to defend such claim if the settlement or ceasing to defend such claim would result in any Contesta material increase in the Taxes of Tyler in a Tax period beginning after the Closing Date.
Appears in 1 contract
Contests. (ai) After the Merger Effective TimeClosing and continuing through the period during which holders of Company Shares are required to indemnify Parent and the Surviving Corporation pursuant to Article VIII, the Purchaser Parent shall promptly notify the Seller Stockholder’s Representative in writing of the proposed assessment or (A) the commencement of any Tax audit audit, investigation or administrative or judicial proceeding or relating to any tax of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary subsidiary or any Joint Venture whichholder of Company Shares for any Pre-Closing Period and (B) any notice of a proposed assessment or claim in an audit, if determined adversely investigation or administrative or judicial proceeding relating to the taxpayer or after the lapse any tax for any Pre-Closing Period of 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 subsidiary or any Joint Venture) describing holder of Company Shares; provided, however, that 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 such notice of an asserted Tax Liability as required by this Section 7.03, shall will not limit the obligation of the Seller affect Parent’s right to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only indemnification except to the extent extent, if any, that such failure resulted materially prejudices the holders of Company Shares’ ability to contest the tax liability in an economic detriment to the Sellerquestion.
(bii) In the case of a Tax audit an audit, investigation or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on any tax of Company or before the date any of the Mergerits subsidiaries for any Pre-Closing Period, the Seller Stockholders’ Representative shall have the sole right, right at its expense, expense to direct and control the conduct ofconduct, defense and settlement of any such audit, investigation or pursue proceeding; provided, however, that the Stockholders’ Representative shall not settle any such audit, investigation or settleproceeding in a manner that would materially affect the taxes of Company or its subsidiaries in any period after the Closing, such Contest.
(cwithout the consent of Company, which shall not be unreasonably withheld or delayed; provided, further, however, that the Stockholders’ Representatives’ rights contained in this Section 6.9(c)(ii) With respect shall apply only to Straddle Periods, the Seller may elect to direct and control, through counsel of its own choosing, any Contest involving any asserted Tax Liability tax matters with respect to which indemnity may be sought from the Seller holders of Company Shares are required to indemnify Parent and Surviving Corporation pursuant to Section 7.01. If the Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlArticle VIII.
(diii) The Purchaser and Except as provided otherwise in this Section 6.9, following the Seller agree Closing, Parent will have the sole right to cooperate, and the Purchaser agrees conduct any tax audit or other tax contest relating to cause the Company and the Subsidiaries to cooperate, in the defense against or compromise of any claim in any ContestCompany.
Appears in 1 contract
Sources: Merger Agreement (F5 Networks Inc)
Contests. (a) After the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing Parent agrees to give prompt written notice to Shareholder Representative of the proposed assessment receipt of any notice by the Company, Parent or any Affiliates thereof which involves the assertion of any claim, or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Action with respect to Taxes (A) for which the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely to the taxpayer or after the lapse of time, Shareholders could be grounds for have an indemnification by the Seller obligation under Section 7.01. Such notice shall contain factual information 8.2 or (B) which relates to a Pre-Closing Tax Period or Straddle Period of the extent known Company (a “Tax Claim”); provided, that failure 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 comply with this Section 7.03, provision shall not limit the obligation of the Seller affect Parent Indemnitees’ right to indemnify the Purchaserindemnification hereunder, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only except to the extent that the Shareholder Representatives or the Shareholders forfeit rights or defenses by reason of such failure resulted in an economic detriment failure. Shareholder Representative shall have the right to control the Seller.
(b) In the case contest or resolution of a any Tax audit or administrative or judicial proceeding (a “Contest”) Claim that relates to taxable periods ending on or before the date of the Merger, the Seller shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, such Contest.
a Pre-Closing Tax Period (c) With respect to Straddle Periods, the Seller may elect to direct and control, through counsel of its own choosing, including any Contest involving any asserted Tax Liability Claim with respect to which indemnity may be sought from the Seller pursuant to Section 7.01. If the Seller elects to direct any income Tax Return filed by Company as a ContestSubchapter S corporation) by notifying Parent in writing, the Seller shall within thirty (30) days of the receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase notification of such Contest. If Tax Claim from Parent, that the Seller elects not to direct Shareholder Representative will assume the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control defense of such Contest (at Tax Claim, provided, however, that the Purchaser’s expense). The Seller Shareholder Representative shall fully cooperate in each phase of such Contest. Neither obtain the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the prior written consent of the other party, Parent (which consent may shall not be unreasonably withheld. In withheld or delayed) before entering into any settlement of a Tax Claim or ceasing to defend such ContestTax Claim; and, provided further, that Parent shall be entitled to participate in (but not control) the defense of such Tax Claim and to employ counsel of its choice for such purpose, the costs fees and expenses of the party assuming control of such Contest which separate counsel shall be paid first from borne solely by Parent. Parent shall control the contest or resolution of all other Tax Claims (including any recovery Tax Claims that the Shareholder Representative has not assumed the defense thereof); provided, however, that Parent shall obtain the prior written consent of Shareholder Representative (which consent shall not be unreasonably withheld or delayed) before entering into any payments are made settlement of a claim or ceasing to either party. The Purchaser may participatedefend such claim; and, at its own expenseprovided further, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree that Shareholder Representative shall be entitled to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, participate in the defense against 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 Shareholder Representative. Notwithstanding the foregoing and anything to the contrary herein, the Shareholder Representative shall control the contest or compromise resolution of a Tax litigation currently pending in the United States Tax Court (Docket Nos. 11565-15, 28033-15, 28077-15, 28095-15, 28422-15, 28423-15 and 28435-15) (“Tax Litigation”), provided, however, that the Shareholder Representative shall obtain the prior written consent of Parent (which consent shall not be unreasonably withheld or delayed) before entering into any claim settlement of a Tax Litigation or ceasing to defend such Tax Litigation, and, provided further, that Parent shall be entitled to participate in any Contest(but not control) the defense of such Tax Litigation and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Parent.
Appears in 1 contract
Contests. (a) After Buyer agrees to give written notice to the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing Sellers’ Representative of the proposed assessment or the commencement receipt of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates, written notice by the Company, any Subsidiary Company Subsidiary, Buyer or any Joint Venture which, if determined adversely to of Buyer’s Affiliates which involves the taxpayer or after the lapse of 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 assertion of any notice or other document received from any taxing authority in respect of any such asserted claim for which an indemnity will be sought by Buyer pursuant to this ARTICLE VII (a “Tax Liability. Any Claim”); provided, that failure by the Purchaser to give the Seller prompt notice of an asserted Tax Liability as required by comply with this Section 7.03, provision shall not limit the obligation of the Seller affect Buyer’s right to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless indemnification hereunder except and only to the extent that Sellers forfeit material rights or defenses by reason of such failure resulted failure. The Sellers’ Representative may, at the Sellers’ own expense, participate in an economic detriment 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 Seller.
(b) In Buyer Indemnitees with respect to all Taxes at issue in such Tax Claim. If the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date of the MergerSellers’ Representative assumes such defense, the Seller Sellers’ Representative shall control all proceedings taken in connection with such Tax Claim (including selection of counsel) and may, in its reasonable discretion, 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 the tax claim in any permissible manner; provided, however, that (i) Buyer shall have the sole rightright to participate in any such Tax Claim and the Sellers’ Representative shall provide Buyer with copies of all written communications relating to the Tax Claim, at its expense, to direct (ii) the Sellers’ Representative shall keep Buyer informed regarding the progress of such Tax Claim 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 counsel of its own choosing, any Contest involving any asserted Tax Liability consult with Buyer with respect to which indemnity may be sought from the Seller pursuant to Section 7.01. If the Seller elects to direct a Contestany issue that could have an adverse effect on Buyer, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary Company or any Joint Venture Company Subsidiary and (iii) the Sellers’ Representative shall assume control of such Contest not settle or otherwise resolve any Tax Claim (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into issue raised in any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period Tax Claim) without the prior written consent of the other party, Buyer (which consent may shall not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlwithheld or delayed).
(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) After the Merger Effective TimeClosing Date, the Purchaser shall promptly notify the Seller Representative in writing of the any written notice of a proposed assessment adjustment or the commencement of any Tax Claim in an audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary involving Purchaser or any Joint Venture of the Company Parties which, if determined adversely to the taxpayer or after the lapse of timetaxpayer, could would be grounds for indemnification by the Seller under this Section 7.01. Such 10.3; provided, however, that a failure or delay to give such notice shall contain factual information (will not affect Purchaser’s right to indemnification thereunder except to the extent known to the Purchaserextent, its Affiliatesif any, 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 Subsidiary or any Joint Venture for such Tax Liability unless and only to the extent that such failure resulted in an economic detriment to the SellerSellers are materially prejudiced thereby.
(bii) In the case of a Tax an audit or administrative or judicial proceeding that relates solely to taxable periods ending on or before the Closing Date, provided, that, Seller Representative acknowledges in writing its obligation to indemnify Purchaser and the Company Parties (to the extent not covered by the R&W Insurance Policy or Indemnity Escrow Account) amount of any adjustment that may be made as a “Contest”) result of such audit or proceeding and, provided further, that such audit or proceeding does not seek criminal penalties against any of the Company Parties or material equitable or other non-monetary remedies against any of the Company Parties, Seller Representative shall have the right at Seller Representative’s expense to participate in and control the conduct of such audit or proceeding. Subject to the provisions and limitations set forth in the preceding sentence, Purchaser shall use its commercially reasonable efforts to allow Seller Representative, at Seller Representative’s expense, to control any portion of any other audit or proceeding that relates to taxable periods ending on or before the date Closing Date. The Seller Representative shall keep Purchaser informed of the Mergerprogress of any such audit or proceeding (including the prompt provision to Purchaser of all material correspondence, the Seller shall have the sole rightpleadings, protests, briefs and other documents pertaining to such audit or proceeding), and Purchaser also may participate in any such audit or proceeding at its expense. Seller Representative shall not settle any such audit or proceeding without the advance written consent of Purchaser, to direct and control which consent shall not be unreasonably withheld, conditioned or delayed. If Seller Representative does not assume the conduct ofdefense of any such audit or proceeding, or pursue or settle, such Contestthe provisions of Section 10.3(e)(iii) shall apply with respect thereto.
(ciii) With respect to Straddle Periodsany other audit or proceeding not controlled by Seller Representative, such audit or proceeding shall be controlled by Purchaser. If, however, Sellers could be subject to any liability under this Agreement in connection with any such audit or proceeding, Purchaser shall keep 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt Representative informed of the notice progress of asserted Tax Liability notify any such audit or proceeding (including the Purchaser prompt provision to Seller Representative of its intent to do soall material correspondence, pleadings, protests, briefs and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant documents pertaining to such audit or proceeding), Seller Representative may also participate in any such audit or proceeding which would adversely affect the other party for at its expense and Purchaser shall not settle any such taxable period audit or a subsequent taxable period proceeding without the advance written consent of the other partySeller Representative, which consent may shall not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlconditioned or delayed.
(div) The Purchaser and For the Seller agree to cooperateavoidance of doubt, the provisions of this Section 10.3(e), and the Purchaser agrees to cause the Company and the Subsidiaries to cooperatenot those of Section 9.3, shall apply in the defense against or compromise case of any claim in any Contestadjustment, claim, controversy or administrative or judicial proceeding relating to Taxes.
Appears in 1 contract
Contests. (a) After the Merger Effective TimeClosing, the Purchaser shall promptly notify the Seller Covance in writing of any written notice or any communication from the proposed assessment IRS or other Tax authority, in the commencement context of an audit, examination, request for information or otherwise, of any matter that could give rise to a right of indemnification under Article VIII (a "Tax audit or administrative or judicial proceeding or Claim"). Such notice of any demand or claim on a Tax Claim shall state the nature of the claim, amount indemnified against, if known, and the method of computing such amount. If notice of a Tax Claim is not given promptly after receipt of such communication by the Purchaser, its Affiliatesor in reasonable detail to inform Covance of the nature of the Tax Claim, in each case taking into account the Companyfacts and circumstances with respect to such Tax Claim, any Subsidiary or any Joint Venture which, if determined adversely to the taxpayer or after the lapse of time, could Covance shall not be grounds for indemnification by the Seller under Section 7.01. Such notice shall contain factual information (to the extent known liable 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 Subsidiary or any Joint Venture for such Tax Liability unless and but only to the extent that Covance's position is actually prejudiced as a result of such failure resulted in an economic detriment to the Sellerso promptly notify or inform.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) Claim that relates to taxable periods ending on one or before the date of the Mergermore Pre-Closing Tax Periods, the Seller Covance shall have the sole right, at its own expense, to direct participate in and control the conduct ofof all proceedings in connection with such Tax Claim (including selection of counsel). Covance shall not admit any liability with respect to, or pursue or settle, compromise or discharge, such ContestTax Claim without Purchaser's prior written consent, which consent shall not be unreasonably withheld. If Covance does not elect to contest any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to Covance setting forth the terms and conditions of settlement, and, if Covance does not so elect, Covance shall reimburse the Purchaser for all reasonable out-of-pocket expenses (including reasonable attorney and accountant fees) in connection with contesting any proposed disallowance of the Company NOL to the extent such proposed disallowance would cause the Company NOL to be less than $49.5 million.
(c) With respect to Straddle Periodsissues included in a Tax Claim relating to a potential adjustment for which both Covance and the Purchaser could be liable, (i) each party may participate in the Seller may elect to direct audit or proceeding, and control(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. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, through counsel choice of its own choosingjudicial forum) in situations in which separate issues are otherwise jointly controlled under this Article VIII by the Purchaser and Covance. Neither party shall admit any liability with respect to, any Contest involving any asserted or settle, compromise or discharge, such Tax Liability issues or claim without the other party's prior written consent, which consent shall not be unreasonably withheld.
(d) Notwithstanding Section 8.06(c) hereof, with respect to which indemnity may be sought from any proposed disallowance of the Seller pursuant to Company NOL for any Post-Closing Tax Period indemnified against by Covance under Section 7.01. If the Seller elects to direct a Contest8.01(b)(ii) (an "NOL Tax Claim"), the Seller Purchaser will contest such NOL Tax Claim in good faith, and will not take any action with respect to such contest and NOL Tax Claim without the consent of Covance (which shall within thirty (not be unreasonably withheld) for a 30) days -day period after delivery of receipt of the notice of asserted such NOL Tax Liability notify Claim to Covance; provided, however, that (i) within 25 days after Covance has been notified in writing by the Purchaser of the NOL Tax Claim, Covance shall request in writing that such NOL Tax Claim be contested; and (ii) the conduct of such contest shall remain within the control of the Purchaser and its intent counsel (who shall be independent tax counsel of national reputation, selected by the Purchaser and reasonably satisfactory to do soCovance); provided further that, without limiting the right of the Purchaser to control any NOL Tax Claim contest, the Purchaser shall consult in good faith with Covance with respect to any Tax Proceeding related to such NOL Tax Claim, including, without limitation, keeping Covance informed of material developments with respect to such Tax Proceeding on a timely basis, providing Covance with the Purchaser's material written submissions or replies with respect to such Tax Proceeding prior to filing thereof with such authority or with the relevant court, and copies of documents actually filed in such Tax Proceeding, and considering in good faith the comments and views of Covance with respect to the conduct of such Tax Proceeding.
(e) Covance shall reimburse Purchaser for all reasonable out-of-pocket expenses (including attorney and accountant fees) of contesting an NOL Tax Claim as such expenses are incurred and the Purchaser delivers materials to Covance evidencing such expenses. The Purchaser shall cooperate and shall cause the Companynot admit any liability with respect to, the Subsidiaries and the Joint Ventures to fully cooperateor settle, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Companycompromise or discharge, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period NOL Tax Claim without the Covance's prior written consent of the other partyconsent, which consent may shall not be unreasonably withheld. In Covance shall advance to Purchaser sufficient funds for Purchaser to pay any such Contest, the costs and expenses Tax contested in any Tax Proceeding pertaining to any portion of the party assuming control of such Contest shall be paid first from any recovery before any payments are made to either party. The Purchaser may participate, at its own expense, in any Contest Company NOL in which the Seller assumes controlTax contested must be paid prior to, and the Seller may participateor upon commencement of such Tax Proceeding. Following a Final Determination of an NOL Tax Claim, at its own expense, in any Contest in which the Purchaser assumes controlshall refund to Covance any amounts advanced for this purpose (together with any related amounts of interest received) that are in excess of amounts finally determined to be due by Covance in respect of such NOL Tax Claim under this Agreement.
(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. If any Governmental Authority issues to Parent or Upgrade (ai) After a notice of its intent to audit, examine or conduct an Action with respect to any Tax Returns of Upgrade for any Pre-Closing Tax Period or Straddle Period that reflects Pass-Through Allocations required to be included on a Tax Return of Member Representative, or with respect to any other Income Tax Return of Upgrade for any Pre-Closing Tax Period or Straddle Period if the Merger Effective Timenotice is issued prior to the Closing, or (ii) a notice of deficiency, a notice of its intent to assess a deficiency or a notice of proposed adjustment concerning any income Tax Returns of Upgrade for any Pre-Closing Tax Period or Straddle Period that reflects Pass-Through Allocations required to be included on a Tax Return of the Purchaser Member Representative, or with respect to any other Income Tax Return of Upgrade for any Pre-Closing Tax Period or Straddle Period if the notice is issued prior to the Closing (the items set forth in clauses (i) and (ii), each a “Tax Claim”) and if the Member Representative can have any potential exposure to Taxes with respect to such Tax Claim (including the adjustment to any amount of Pass-Through Allocations to the Member Representative with respect to Upgrade), Parent shall promptly notify the Seller in writing Member Representative within twenty (20) Business Days of the proposed assessment or receipt of such communication; provided, that the commencement failure to give such timely notice shall not relieve the Member Representative of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaserindemnification obligation hereunder, its Affiliates, the Company, any Subsidiary or any Joint Venture 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. 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 Subsidiary or any Joint Venture for such Tax Liability unless except and only to the extent that the Member Representative is actually and materially prejudiced by such failure resulted in an economic detriment to give timely notice. The Member Representative shall have the Seller.
(b) In right, at the case Member Representative’s sole cost and expense, to control, defend, settle and resolve the contest of a any Tax audit or administrative or judicial proceeding Claim (a “Tax Contest”) relating to any Pre-Closing Tax Period that relates reflects Pass-Through Allocations required to taxable periods ending be included on or before the date a Tax Return of the MergerMember Representative, so long as the Seller shall have the sole right, at its expense, Member Representative provides written notice 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 counsel Parent of its own choosing, any intent to control such Tax 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 Seller shall within thirty (30) days after receiving notice of receipt such matter; provided, that during such thirty (30)-day election period, Parent shall have the right (but not the obligation) to take any interim actions reasonably necessary to preserve the rights of the notice of asserted parties with respect to such Tax Liability notify the Purchaser of its intent to do soContest, and Parent shall have the Purchaser exclusive authority to control, defend, settle and resolve any Tax Contest that the Member Representative does not have the right to control (including any Tax Contest relating to any Straddle Period). If the Member Representative fails to give such notice within such time period, then Parent shall cooperate have the exclusive right to control such Tax Contest. Each of Parent and the Member Representative shall have the right to participate in a Tax Contest being defended against by the other at its sole expense and shall cause keep the Companyother reasonably informed of the status of such Tax Contest (including providing copies of all material written correspondence with the IRS or other Tax authority regarding such matter). Notwithstanding anything to the contrary herein, (A) the Subsidiaries Member Representative shall not be entitled to settle, either administratively or after the commencement of litigation, any Tax Contest without the prior written consent of Parent, which consent will not be unreasonably withheld, conditioned or delayed, provided, however, that no such settlement shall be agreed to if it would (1) materially and adversely affect the Joint Ventures Tax attributes, Tax positions, or Tax liability of the Surviving Company or Parent for any post-Closing period, or (2) require the Surviving Company or Parent to fully cooperate, at the Seller’s expenseadopt any Tax position inconsistent with positions taken for post-Closing periods, in each phase case without the prior written consent of such Contest. If Parent in its sole and absolute discretion, and (B) Parent shall not be entitled to settle, either administratively or after the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Companycommencement of litigation, any Subsidiary Tax Contest relating to any Pre-Closing Tax Period or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period Straddle Period without the prior written consent of the other partyMember Representative, which consent may will not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlconditioned or delayed.
(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.
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Contests. (a) After the Merger Effective Time, the Purchaser shall promptly notify the Seller in writing of the proposed assessment or the commencement Whenever any Taxing Authority sends a notice of any Tax audit or administrative or judicial proceeding or audit, initiates an examination of any demand or claim on the Purchaser, its Affiliates, the Company, or otherwise asserts a claim, makes an assessment, or disputes the amount of Taxes (each, a “Tax Contest”) with respect to any:
(i) Pre-Closing Tax Period (excluding a Straddle Period), Buyer shall promptly inform Interest Sellers and Interest Sellers shall have the right to control any Subsidiary or any Joint Venture whichresulting Proceedings (at their own expense) and, if determined adversely subject to the taxpayer or after the lapse immediately following sentence, to determine whether and when to settle any such Tax Contest; provided however, that (A) Interest Sellers shall keep Buyer apprised of time, could be grounds for indemnification by the Seller under Section 7.01. Such notice shall contain factual information (all developments relating to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture) describing the asserted such Tax Liability in reasonable detail Contest and shall include copies of any notice or other document received from any taxing authority in respect conduct the defense of any such asserted Tax LiabilityContest diligently and in good faith and (B) Buyer shall have the right to participate in such Tax Contest at its own expense. Any failure by the Purchaser to give the Seller prompt notice of an asserted Tax Liability as required by this Section 7.03, Interest Sellers shall not limit settle, compromise and/or concede any portion of a Tax Contest if such settlement, compromise and/or concession would have an adverse impact on Buyer or the obligation Company for any Post-Closing Tax Period, including a post-Closing Straddle Period, without the consent of the Seller Buyer, which consent shall not be unreasonably withheld, delayed or conditioned. If, with respect to indemnify the Purchaserany Tax Contest, the Company, any Subsidiary Interest Sellers fail diligently to defend or any Joint Venture for prosecute such Tax Liability unless 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 only 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 extent that immediately following sentence, to determine whether and when to settle any such failure resulted Tax Contest; provided, however, in an economic detriment to the Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) Contest that relates to taxable periods ending on or before the date of the Mergera Straddle Period, the Seller Interest Sellers shall have the sole right, right to participate in such Tax Contest at its their own expense, to direct and control the conduct of, or pursue or . Buyer shall not settle, compromise and/or concede any portion of a Tax Contest if such Contest.
(c) With respect to settlement, compromise and/or concession would have an adverse impact on Interest Sellers for any Pre-Closing Tax Period, including a pre-Closing Straddle PeriodsPeriod, 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 Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or 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 pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other partyInterest Sellers, which consent may shall not be unreasonably withheld. In any such Contest, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes controlconditioned or delayed.
(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
Sources: Membership Interest and Asset Purchase Agreement (Montauk Renewables, Inc.)
Contests. (a) After the Merger Effective TimeClosing Date, Purchaser or the Purchaser Corporation shall promptly notify the Seller in writing within twenty (20) Business Days of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding in respect of a taxation period or portion thereof of any demand the Corporation ending on or claim on before the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.01Closing Date. Such notice shall contain factual information (to the extent known to Purchaser or the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint VentureCorporation) describing the any asserted Tax Liability liability for Taxes in reasonable detail and shall include copies of any notice or other document received from any taxing authority Governmental Entity in respect of any such asserted Tax Liabilityliability for Taxes. Any The failure by the Purchaser to give the Seller prompt any notice of an asserted Tax Liability as required by this Section 7.03, 5.5.3
(a) in a timely manner shall not limit the obligation of the Seller to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only under Section 5.5.1 except to the extent that Seller is prejudiced by such failure resulted in an economic detriment to the Sellerfailure.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the date Seller may, upon written acknowledgement of the Mergerobligation to provide indemnification with respect thereto, 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 controldirect, through counsel of its own choosingchoosing and at the expense of Seller, any Contest audit, claim for refund and administrative or judicial proceeding involving any asserted Tax Liability liability with respect to which indemnity may be sought from the Seller pursuant under Section 5.5.1 (any such audit, claim for refund or proceeding relating to Section 7.01an asserted Tax liability is referred to herein as a "Contest"). If the Seller elects to direct a Contest, the Seller it shall within thirty (30) calendar days of receipt of the notice of asserted Tax Liability the commencement of a Contest, notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures Corporation or its successor to fully cooperate, at the Seller’s expenseexpense of Seller (which shall not include the cost of the Corporation personnel), in each phase of such Contest. If the Seller elects not to direct the Contest, Purchaser or the Seller shall promptly notify the Corporation may pay, compromise or contest such asserted liability; provided, however, that in such case, neither 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 each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into Corporation may settle or compromise any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period asserted liability without the written consent of the other partySeller, which consent may shall not be unreasonably withheld. In any such Contestevent, the 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. The Purchaser may participate, at its own expense, in any Contest in which the Seller assumes control, and the Seller may participate, at its own expensethe expense of Seller, in any the Contest. If Seller chooses to direct the Contest, Purchaser shall promptly empower and shall cause the Corporation or its 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 assumes controlor 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) The 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 and or the Seller agree Corporation provided if Purchaser or the Corporation withholds its consent to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, in the defense against a settlement or compromise of any claim 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)