Liability for Taxes. (i) Parent ----------- ------------------- shall be liable for and pay, and pursuant to Article XI shall indemnify and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, any and all Taxes (A) imposed on any Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision of state or local law solely as a result of such Company having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basis, (B) imposed on or with respect to any Company, for which any Company may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (C) arising solely from the termination, as of the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (I) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date after the Closing, and (III) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital (the Taxes described in this proviso being referred to as "Excluded Taxes"). Parent -------------- shall be entitled to any refund of (or actual credit for when and as actually realized) Taxes for which it is liable under this Section 8.2(a). --------------
Appears in 3 contracts
Sources: Purchase Agreement (Aramark Worldwide Corp), Purchase Agreement (Aramark Worldwide Corp), Purchase Agreement (Aramark Corp)
Liability for Taxes. (i) Parent ----------- ------------------- Sellers shall be liable for for, shall pay (or cause to be paid) and pay, and pursuant to Article XI shall indemnify and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising fromagainst, any and all Taxes without duplication, (A) imposed on any Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision of state or local law solely as a result of such Company having been a member of a group of corporations joining all Taxes other than Taxes described in filing Tax Returns on a consolidated, combined or unitary basis, clause (B) imposed on the Acquired Entities or Sellers with respect to the Business (1) for any Pre-Closing Period, including any Taxes imposed on any Deemed Section 338(h)(10) Election Transactions, and (2) with respect to any Company, for which any Company may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends beginning on or before the Closing Date and, with respect to any and ending after the Closing Date (a “Straddle Period”), for the portion of such Straddle Period ending at the close of the day on and including the Closing Date, calculated in accordance with Section 5.16(h)(iii), (B) Transfer Taxes for which Sellers are responsible pursuant to Section 5.16(b), (C) arising solely from the termination, as of the Closing Date, all Taxes of any Company that is a corporation Person (other than the Acquired Entities) as a member result of having been, prior to the affiliated Closing, part of any consolidated, combined, affiliated, aggregate, unitary or similar group for purposes of filing Tax Returns or paying Taxes (including any liability under Treasury Regulations Section 1.1502-6 or any similar provision of state, local or non-U.S. Tax Law) or as defined a transferee or successor or by contract (other than (x) commercial agreements entered into in Section 1504 the ordinary course of business, the Code) principal purposes of which Parent is are not related to Taxes and (y) contracts entered into after the parent corporationClosing), (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or Taxes, (E) that are all Taxes resulting from, arising out of or in connection with any breach or inaccuracy of any of the representations and warranties of Sellers in Section 338(h)(103.16, (F) except as provided in Section 5.7(a)(y)(3), all Taxes imposed on the Separation Activities and allocated to Sellers pursuant to Section 5.7(h), and (G) all Taxes resulting from, arising out of or attributable to any breach by any Seller of a covenant in this Agreement related to Taxes. In the event of any conflict or inconsistency between any provision in this Section 5.16(h)(i) and any provision in ARTICLE VIII, the provisions of this Section 5.16(h)(i) shall control and govern; provided, however, that -------- ------- Parent shall not be liable for or paythat, and shall not indemnify or hold harmless any Buyer Group Member from and against, (I) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to paragraphs (j) and (m) of Section 3.16, Sellers shall not have any responsibility pursuant to this Section 5.16(h)(i) in respect of any Taxes resulting from, arising out of or in connection with any breach or inaccuracy of any of the HEA Membership Interests representations and warranties of Sellers in Section 3.16 to the extent such Taxes are attributable to any Tax period (or the SMMSLP LP Interests portion thereof, as a result of actual transactions not calculated in the ordinary course of business occurring on accordance with Section 5.16(h)(iii)) beginning after the Closing Date after the Closing, and (III) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital (the Taxes described in this proviso being referred to as "Excluded Taxes"). Parent -------------- shall be entitled to any refund of (or actual credit for when and as actually realized) Taxes for which it is liable under this Section 8.2(a). --------------Date.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Marathon Petroleum Corp)
Liability for Taxes. (i) Parent ----------- ------------------- Aon shall be liable for and pay, and pursuant to Article XI shall (and subject to the provisions thereof but not subject to the limitations in Section 11.1(a)) agrees to indemnify and hold ---------- harmless each Buyer Group Member from Member, the Company and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising fromthe Subsidiaries against, any and all Taxes (A) imposed on the Company or any Company Subsidiary pursuant to Treas. Reg. (S) 1.1502- Treasury Regulation Section 1.1502-6 or similar provision of state or local law solely as a result of such the Company or any Subsidiary having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basisthe Aon consolidated group, (B) imposed on or with respect to any the Company, any Subsidiary, or any Buyer Group Member as a result of the restructuring described in Section 8.8 of this Agreement, (C) imposed on the Company or any Subsidiary, or for which the Company or any Company Subsidiary may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, including Section 338 Taxes and any Taxes imposed on the transactions contemplated by the Sterling Agreement or (CD) arising solely from imposed on the terminationCompany or any Subsidiary as a result of any breach of warranty or misrepresentation under Section 5.7 but only for and to the extent attributable to any taxable year or period that ends on or before the Closing Date and, as with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent Aon shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, against (I) any incremental Taxes shown as a liability or reserve on the Net Worth Adjustment Report and taken into account in the calculation of the Closing Date Net Worth (“Reserved Taxes”); (II) any Taxes (other than any Section 338(h)(10) 338 Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, Shares or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, of the Subsidiaries or that result from Buyer, any Affiliate of Buyer Buyer, the Company or any Company Subsidiary engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of the Company or any Company (other than HEA) Subsidiary for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date after the Closing, purposes and (III) any Taxes shown imposed on the Company or any Subsidiary or for which the Company or any Subsidiary may otherwise be liable as a liability or reserve result of transactions occurring on the Closing Date Balance Sheet that are properly allocable (based on, among other relevant factors, factors set forth in Treasury Regulation § 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing and would not excluded have been otherwise included as a liability in determining Net Working Capital part of the Section 338 Taxes (the Taxes described in this proviso being referred to as "“Excluded Taxes"”); provided, further, that Aon’s liability for any withholding or employment Taxes relating to any taxable year or period ending on or before the Closing Date or the portion of any Straddle Period ending on and including the Closing Date shall be governed solely by the provisions of Section 5.7 (determined without regard to the last sentence thereof), including the applicable limitations of Article XI, and shall not be governed by this Section 8.1. Parent -------------- Except as otherwise provided in this Section 8.1, Aon shall be entitled to any refund of (or actual credit for when and as actually realizedfor) Taxes allocable to any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date. For the avoidance of doubt, no provision in this Agreement shall be read to require Buyer to pay over any amount of Taxes to Aon that has been reflected as a receivable (or netted against a Tax liability) in the Net Worth Adjustment Report or to require Buyer to indemnify Aon for any Taxes that would be treated as Section 338 Taxes as well as being treated under another provision of this Section 8.1.
(ii) Buyer shall be liable for and pay, and pursuant to Article XI (and subject to the provisions thereof but not subject to the limitations in Section 11.2((a)) shall indemnify and hold harmless each Seller Group Member from and against, (A) any and all Taxes imposed on the Company or any Subsidiary or for which it is the Company or any Subsidiary may otherwise be liable under this Section 8.2(afor any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date and (B). --------------
Appears in 2 contracts
Sources: Stock Purchase Agreement (Aon Corp), Stock Purchase Agreement (Ace LTD)
Liability for Taxes. (a) The Seller (and with respect to the indemnity provided in clause (x) of this Section 8.01(a), Parent and Seller, jointly and severally) shall indemnify, defend and hold harmless the Acquiror Indemnified Parties from and against:
(i) Parent ----------- ------------------- shall be liable for and pay, and pursuant to Article XI shall indemnify and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, any and all Taxes (A) imposed on the Company or any Transferred Subsidiary, or for which the Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision of state or local law solely any Transferred Subsidiary may otherwise be liable, as a result of such the Company or any Transferred Subsidiary having been a member of a group of corporations joining in filing Tax Returns on a combined, unitary, consolidated, combined affiliated or unitary basis, (B) imposed on or other group with respect to taxable periods (or portions thereof) ending on or before the Closing Date, including pursuant to U.S. Treasury Regulations section 1.1502-6 or any Companysimilar provision of state, local or non-U.S. Law;
(ii) all Taxes imposed on the Company or any Transferred Subsidiary, or for which the Company or any Company Transferred Subsidiary may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends on or before the Pre-Closing Date Taxable Periods and, with respect to any Straddle Period, all Taxes attributable to the portion of such Straddle Period ending on and including the Closing Date, including (C1) arising solely all Taxes imposed with respect to the transactions contemplated by this Agreement and the Ancillary Agreements that occur on or before the Closing Date (including all Taxes resulting from the terminationSPV 338 Election and the transactions deemed to occur as a result thereof), and (2) all Losses resulting from any termination of a Transferred Subsidiary or an entity in which the Company or a Transferred Subsidiary holds an equity interest under section 708(b) of the Code (or any similar provision of state, local or non-U.S. Tax Law) that occurs on or before the Closing Date due to an actual or deemed sale of an equity interest in such Person by the Company or a Transferred Subsidiary; provided, however that the Seller shall not indemnify the Acquiror Indemnified Parties with respect to Transfer Taxes to the extent such Transfer Taxes are the responsibility of the Acquiror under Section 8.01(e);
(iii) subject to the limitations set forth under Section 8.01(h), and except as otherwise provided under Section 8.07, all Taxes (and any lost Tax benefits) resulting from any breach or inaccuracy of the representations set forth in Section 3.20;
(iv) all Taxes relating to or resulting from (1) transactions permitted or described in Sections 6.01, 6.08, 6.10, 6.12, 6.13(a)(i), 6.13(a)(iii), the second sentence of Section 6.15, and 6.21 of this Agreement, and Section 6.13(a)(ii) of the Seller Disclosure Letter (2) withholding taxes imposed on the payment of consideration under Article II to the extent such Taxes were not withheld by the Acquiror pursuant to Section 2.04 (other than any Transfer Taxes that are the responsibility of the Acquiror under Section 8.01(e)), (3) the distribution of any dividends by the Company to the Seller or to the Parent, (4) all intercompany agreements that are terminated in accordance with this Agreement and the Ancillary Agreements, provided, that this provision shall not be interpreted in any manner that would allow the Acquiror Indemnified Parties to bring a claim to recoup amounts that are paid in settlement of an intercompany obligation under Section 6.08 or Section 8.05(i), (5) elections made under section 338 of the Code (or any similar provision of state, local, or non-U.S. Law) as permitted under Section 8.05(h) of this Agreement, and (6) the transactions that the Seller has an obligation under this Agreement and the Ancillary Agreements to complete or attempt to complete prior to the Closing Date but are completed after the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- with respect to any indemnity for transactions described in Sections 6.13(a)(i) and 6.13(a)(iii), the liability for such Taxes shall be apportioned to the Seller in proportion to the allocated costs to the Seller or any Retained Affiliate other than the Company or Transferred Subsidiaries.
(v) the portion of Transfer Taxes that are the responsibility of the Seller under Section 8.01(e);
(vi) Taxes (including any amounts required to be paid in the form of a reimbursement or compensation for Taxes) imposed on the Company or any Transferred Subsidiary, or for which the Company or any Transferred Subsidiary may otherwise be liable, (1) as a transferee or successor, (2) under applicable Law, (3) by contract, or (4) otherwise; provided, however, that this clause (vi) shall only apply to the extent Taxes that would otherwise be the subject of this clause (vi) result from or relate to arrangements, agreements or transactions, that are entered into, or that occurred, prior to or on the Closing Date, other than any liabilities of the Company or any Transferred Subsidiary pursuant to an indemnity provided by the Company or a Transferred Subsidiary as set forth in this Agreement and the Ancillary Agreements. For purposes of this provision, sub-clauses (3) and (4) above shall not apply to contracts entered into by the Company or a Transferred Subsidiary in the ordinary course of such Person’s business that require the payment or reimbursement of an amount that is related to Taxes other than in the form of an indemnity payment in respect of conduct or a breach (or a failure to act) prior to the Closing Date, provided, that no contract for the sale, disposition or exchange of any property or asset held or owned by the Company or a Transferred Subsidiary shall be treated as entered into in the ordinary course of business;
(vii) all Losses relating to or resulting from any breach or nonperformance by Parent or Seller of any covenant set forth in this Agreement relating to Taxes;
(viii) all matters set forth in Section 8.05(i)(iii) to the extent set forth therein, provided, that this provision shall not be interpreted in any manner that would allow the Acquiror Indemnified Parties to bring a claim to recoup amounts that are paid in settlement of an intercompany obligation under Section 6.08 or Section 8.05(i);
(ix) [Reserved];
(x) all (1) Taxes imposed on DelAm and the assets and business of DelAm, or for which DelAm may otherwise be liable, for all taxable periods (or portions thereof) ending on or before the Closing Date, including all liabilities for Taxes with respect to all contracts and policies reinsured out of DelAm, all Losses and other amounts relating to or resulting from any contract, policy or product sold, issued, reinsured, marketed or otherwise maintained by DelAm on or prior to the Closing Date failing to comply with any applicable requirement of Tax Law, including sections 72, 101, 401, 403, 408, 412, 457, 817, 817A, 7702 or 7702A of the Code, and (2) all costs, expenses, and fees incurred in correcting, remediating or otherwise causing any such contract, policy or product to comply with applicable Tax Law, including any return of premium, any change in benefit payout and all costs and expenses incurred to create substitute forms;
(xi) all Taxes from or related to (1) the Company or any Transferred Subsidiary failing to satisfy the requirements of section 482 of the Code or any similar transfer pricing requirements of local, state or non-U.S. Law, or any compliance or information keeping requirements related thereto for all taxable periods ending on or before the later to occur of the Closing Date or December 31, 2010, provided, however, that no indemnity shall be provided for the taxable periods (or portions thereof) beginning on or after January 1, 2010 to the extent that the Company or the Transferred Subsidiaries implements and uses the methodologies developed in accordance with Section 8.05(m), and (2) any reinsurance agreement entered into by the Company or any Transferred Subsidiary prior to the Closing being recharacterized under section 845(b) of the Code or any similar provision of state, local or non-U.S. Law; and
(xii) all reasonable out of pocket costs, expenses, fees and other amounts incurred in contesting, determining, investigating, or settling any matter for which a claim for indemnity may be made pursuant to clauses (i) through (xi) above, provided, however, that the costs associated with the study set forth in Section 8.05(m) shall be borne by the Seller and the costs of implementing such study shall be borne by the Company and Transferred Subsidiaries; provided, however, that the Seller shall not be liable for or pay, and shall not indemnify indemnify, defend or hold harmless any Buyer Group Member the Acquiror Indemnified Parties from and against,
(A) a liability for Taxes imposed on the Company or a Transferred Subsidiary to the extent a specific accrual has been set forth for such liability for Taxes as a liability on the Final Closing Balance Sheet determined on an item by item or asset by asset basis (taking into account the detailed information set forth in the work papers used to determine the Final Closing Balance Sheet), provided, however, that for purposes of this provision the Final Closing Balance Sheet shall be adjusted as needed to reflect the filing of the Section 338 Elections and the settlement of the intercompany accounts pursuant to Section 8.05(i);
(B) [Reserved]
(C) except with respect to transactions described in clauses (i), (Iiv) any incremental and (vi) above, Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of imposed on the Code Company or any similar provisions of stateTransferred Subsidiary or for which the Company or any Transferred Subsidiary may otherwise be liable, local or foreign law as a result of transactions occurring on the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or Closing Date that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement1) that would cause the transactions contemplated were not required by this Agreement or the Ancillary Agreement to be treated as a purchase occur on or sale of assets of any Company (other than HEA) for federal, state or local Tax purposesprior to the Closing Date, (II2) any Taxes are at the unilateral direction of the Acquiror, and (3) are properly allocable (based on, among other than Section 338(h)(10relevant factors, factors set forth in U.S. Treasury Regulations section 1.1502-76(b)(1)(ii)(B)) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result portion of actual transactions not in the ordinary course of business occurring on the Closing Date after the Closing;
(D) Seller shall not be required to indemnify the Acquiror Indemnified Parties against United States back-up withholding taxes or withholding taxes imposed by a non-U.S. jurisdiction with respect to payments that are made after the Closing Date by the Company or any Transferred Subsidiary to holders or beneficial owners of the insurance products of the Company and any Transferred Subsidiary;
(E) with respect to any indemnity claim for Taxes imposed solely by a United Kingdom Tax Authority or Tax Authority in the countries of Poland, France, and Japan:
(III1) any Taxes shown arising or increased as a liability result of any increase in rates of Tax, any change in Law or reserve published Tax Authority practice or any change in accountancy principles and practices occurring after Closing, other than changes to ensure conformity with relevant generally accepted accountancy principles and practices;
(2) any Taxes that would not have arisen but for a voluntary act or omission by one of the Acquiror Indemnified Parties, the Company or any of the Transferred Subsidiaries at any time after Closing (other than an act or omission effected (v) under a legally binding commitment created on or before Closing or (w) in the Closing Date Balance Sheet and not excluded Ordinary Course of Business of the Acquiror Indemnified Parties, the Company or any of the Transferred Subsidiaries as at Closing), or (x) at the written request of the Seller, a liability in determining Net Working Capital Retained Affiliate, the Parent or any Affiliate of the Parent (other than the Company or any Transferred Subsidiary insofar as the written request is made after the Closing), or (y) pursuant to an obligation under this Agreement; and
(3) any Taxes arising from a cessation of any trade or business carried on by the Company and/or any of the Transferred Subsidiaries, being a cessation occurring on or after Closing. (Taxes described in clauses (A) to (E) of this proviso Section 8.01(a) being hereinafter collectively referred to as "“Excluded Taxes"”). Parent -------------- .
(b) Parent, the Seller or any Retained Affiliate shall be entitled to any refund of Taxes or credit or allowance for Taxes (other than any Excluded Taxes) that, in each case, (i) were imposed on the Company or a Transferred Subsidiary for taxable periods (or actual portions thereof) ending on or before the Closing Date; (ii) are actually paid by the Seller pursuant to an indemnity claim brought under Section 8.01(a) or Section 8.07; or (iii) with respect to a Straddle Period, is a credit for when and as actually realized) Taxes a reduction in a liability to pay Tax in respect of the portion of such Straddle Period ending after the Closing Date due solely to a payment of an estimated Tax during the portion of the Straddle Period ending on or before the Closing Date, provided, however, that with respect to a refund, credit or allowance for a liability for Tax related to an amount of Tax for which it a claim for indemnity under Section 8.07(a)(i)(B) was made, such refund, credit, or allowance shall be solely for the Acquiror’s account until the amount of Acquiror’s portion of the liability for Taxes that relate to the adjustments to Insurance Tax Reserves of the Company that gave rise to such a claim for indemnity is liable reduced to $200,000,000 after taking into account such refunds, credits, or allowances, and thereafter all remaining refunds, credits, and allowances relating to such liability for Taxes shall be split 50/50 between the Seller and the Acquiror; provided, further, however, that any refund, credit or allowance for Taxes described in this Section 8.01(b) shall be for the Acquiror’s account to the extent such refund, credit or allowance (A) was taken into account on the Reference Balance Sheet or Final Closing Balance Sheet, provided, however, that refunds, credits, or allowances set forth on the Final Closing Balance Sheet shall be for the Seller’s account to the extent such refunds, credits and allowances relate to a liability for Taxes of the Company or a Transferred Subsidiary that has been reflected on the profit and loss statement of the relevant taxpayer in a period prior to the Closing Date and for which a specific accrual was set forth on the Final Closing Balance Sheet to offset the value of such refund, credit or allowance to reflect a discount for the value of such refund, credit or allowance due to the risk such refund, credit or allowance may not be obtained, and such refund, credit, or allowance for Tax is set forth on a schedule to be provided by the Seller to the Acquiror no later than 60 days after the date hereof and to the extent consented to by the Acquiror, which consent shall not be unreasonably withheld taking into account the above standards, or (B) relates to a Tax attribute of the Company or a Transferred Subsidiary that is attributable to taxable periods (or portions thereof) beginning after the Closing Date. Except as provided in the foregoing sentence, all refunds, credits and allowances for Taxes (including items described in the provisos to the immediately preceding sentence that are for the Acquiror’s account) shall be for the benefit of the Acquiror. Promptly after receipt of a refund, or claiming a credit or allowance by one party or an Affiliate thereof that is for the benefit of the other party or an Affiliate thereof under this Section 8.2(a8.01(b), the party receiving such refund, or claiming a credit or allowance shall pay to the other party the amount of any such item. --------------For purposes of this Section 8.01(b), the Company and the Transferred Subsidiaries shall be considered an Affiliate of the Acquiror.
(c) Except as set forth in Sections 8.01(a) and Section 8.07, the Acquiror shall indemnify, defend and hold harmless the Seller Indemnified Parties, from and against: (i) all Taxes (other than Taxes imposed by a United Kingdom Tax Authority) imposed on the Company or any Transferred Subsidiary, or for which the Company or any Transferred Subsidiary may otherwise be liable, with respect to any Post-Closing Taxable Periods and, with respect to any Straddle Period, Taxes (other than Taxes imposed by a United Kingdom Tax Authority) attributable to the portion of such Straddle Period beginning after the Closing Date, (ii) Excluded Taxes, (iii) the amount of Tax payable by the Seller or its Affiliates to a relevant Tax Authority to the extent such amount has already been paid by the Seller to the Acquiror pursuant to a claim for indemnity under this Article VIII, or (iv) Losses relating to or resulting from the breach or nonperformance by the Acquiror of any covenant set forth in this Agreement that relates to Taxes; provided, however, that the Acquiror shall not indemnify the Seller Indemnified Parties with respect to Transfer Taxes t
Appears in 2 contracts
Sources: Stock Purchase Agreement (American International Group Inc), Stock Purchase Agreement (Metlife Inc)
Liability for Taxes. (i) Parent ----------- ------------------- Aon shall be liable for and pay, and pursuant to Article XI shall (and subject to the limitations thereof) agrees to indemnify and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising fromagainst, any and all Taxes (A) imposed on any Company of the Companies pursuant to Treas. Reg. (S) 1.1502- Treasury Regulation Section 1.1502-6 or similar provision of state or local law solely as a result of such any Company having been a member of a group of corporations joining in filing Tax Returns on a consolidatedthe Aon consolidated group, combined or unitary basis, (B) imposed on or with respect to any Company, or for which any Company may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (C) arising solely from the termination, as of the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent Aon shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, against (I) any incremental Taxes shown as a liability or reserve on the Net Worth Adjustment Report and taken into account in the calculation of the Closing Date Net Worth (other than Section 338(h)(10“Reserved Taxes”), (II) Taxes) any Taxes that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, Shares or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, of the Subsidiaries or that result from Buyer, any Affiliate of Buyer Buyer, or any Company of the Companies engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) of the Companies for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date after the Closing, and (III) any Taxes shown imposed on any of the Companies or for which any of the Companies may otherwise be liable as a liability or reserve result of transactions occurring on the Closing Date Balance Sheet and not excluded as a liability that are properly allocable (based on, among other relevant factors, factors set forth in determining Net Working Capital Treasury Regulation Section 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing (the Taxes described in this proviso being referred to as "“Excluded Taxes")”) and, provided, further that, without limiting the foregoing, Aon shall be liable for all Facilitating Transaction Taxes. Parent -------------- Aon shall be entitled to any refund of (or actual credit for when and as actually realizedfor) Taxes allocable to any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, except to the extent that such refund was shown as an asset on the Net Worth Adjustment Report and taken into account in the calculation of the Closing Date Net Worth.
(ii) Buyer shall be liable for and pay, and pursuant to Article XI (and subject to the limitations thereof) shall indemnify and hold harmless each Seller Group Member from and against, (A) any and all Taxes imposed on the Companies or for which the Companies may otherwise be liable for any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date and (B) Excluded Taxes (in the case of (A) or (B) other than Facilitating Transaction Taxes). Except as otherwise provided herein, Buyer shall be entitled to any refund of (or credit for) Taxes described in clauses (A) and (B). Buyer shall pay Seller (in the case of any Reserved Taxes that are paid by Seller on behalf of the consolidated group of corporations, combined group of corporations, affiliated group of corporations or unitary group of corporations (or other similar group) of which the Parent Entities and their relevant Subsidiaries are members (“Reserved Consolidated Taxes”)) or the relevant taxing authority (in the case of all other Reserved Taxes) all Reserved Taxes in accordance with past practice (but, in the case of Reserved Consolidated Taxes, in no event later than 5 Business Days following the Net Worth Adjustment Report Finalization Date). For the avoidance of doubt, Buyer shall pay Seller the full amount accrued for Reserved Consolidated Taxes (regardless of any actual Tax liability).
(iii) For purposes of Sections 8.1(a)(i) and (a)(ii), whenever it is necessary to determine the liability for Taxes of the Companies for a Straddle Period, the determination of such Taxes for the portion of the Straddle Period ending on and including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date, and items of income, gain, deduction, loss or credit of the Companies for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Companies were closed at the close of the Closing Date; provided, however, that (I) transactions occurring on the Closing Date that are properly allocable (based on, among other relevant factors, factors set forth in Treasury Regulation Section 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing shall be allocated to the taxable year or period that is deemed to begin at the beginning of the day following the Closing Date, (II) exemptions, allowances or deductions that are calculated on an annual basis, such as the deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis and (III) all Facilitating Transactions shall be allocated to the period before the Closing Date.
(iv) If, as a result of any action, suit, investigation, audit, claim, assessment or amended Tax Return, there is any change after the Closing Date in an item of income, gain, loss, deduction, credit or amount of Tax that results in an increase in a Tax liability for which Aon would otherwise be liable under pursuant to Section 8.1(a)(i), and such change results in or will result in a decrease in the Tax liability of the Companies, Buyer or any Affiliate or successor thereof for any taxable year or period beginning after the Closing Date or for the portion of any Straddle Period beginning after the Closing Date, Aon shall not be liable pursuant to such Section 8.1(a)(i) with respect to such increase to the extent of the present value (using a discount rate equal to the then “Federal Mid-Term Rate,” as that term is defined in Section 1274(d) of the Code) of such decrease (and, to the extent such increase in Tax liability is paid to a taxing authority by Aon or any Affiliate thereof, Buyer shall pay Aon an amount equal to the present value of such decrease).
(v) Notwithstanding anything herein to the contrary, Buyer and Aon shall each be responsible for and indemnify the other for 50% of any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Section 8.2(a). --------------Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Aon Corp)
Liability for Taxes. (ia) Parent ----------- ------------------- Seller shall be liable for and pay, and pursuant to Article XI shall indemnify and hold ---------- harmless each the Buyer Group Member Indemnified Parties from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising fromattributable to, any and all without duplication, (i) Taxes (A) imposed on any the Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision of state or local law solely as a result of such the Company having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basis, (B) imposed on or with respect Seller’s Group prior to any Company, for which any Company may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (Cii) arising solely from Taxes imposed on the terminationCompany for any Pre-Accounts Date Taxable Periods, as (iii) Taxes in excess of (A) the Deemed Tax Liability reduced by (B) any payments made by Buyer under Section 10.01(b)(i) or by the Company under Section 10.05(b)(ii) or (iv) or remitted by Buyer or the Company to a Tax Authority under Section 10.02, that are imposed on the Company or for which the Company may otherwise be liable for any Post-Accounts Date Taxable Period ending on the earlier of the end of such period and the Closing Date, Date and (iv) Taxes that arise from or are attributable to any breach of any Company that is a corporation as a member covenant under Article X and any inaccuracy in or breach of the affiliated group (as defined any representation or warranty made in Section 1504 of the Code) of which Parent is the parent corporation5.19(d), (De) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxesf); provided, however, that -------- ------- Parent Seller shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (IA) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section Sections 336(e) or 338 of the Code or any similar provisions of state, local or foreign law Law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, Shares or that result from Buyer, any Affiliate of Buyer or any (after the Closing Date) the Company engaging in any activity or transaction (other than the activities and transactions except as contemplated by this AgreementAgreement or required by applicable Law) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any the Company (other than HEA) for foreign, federal, state state, local or local other Tax purposes, (IIB) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be Buyer is liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date after the Closingunder Section 10.01(b), and (IIIC) any Taxes to the extent of any related accrued current tax payable shown as a liability or reserve on the Closing Financial Statements as of the Accounts Date Balance Sheet and not excluded as a liability in determining Net Working Capital (the Taxes described in clauses (A) and (C) of this proviso being referred to as "proviso, “Excluded Taxes"”). Parent -------------- Seller shall be entitled to any refund of (or actual credit for when and as actually realizedfor) Taxes of the Company (other than Excluded Taxes) allocable to any Pre-Accounts Date Taxable Periods (except to the extent such refund (x) results from the carryback of a Tax Attribute relating to a Post-Accounts Date Taxable Period or (y) is reflected on the Financial Statements as a current tax receivable as of the Accounts Date). Any such refunds received by Buyer or its Affiliates shall be promptly, and in any event within thirty (30) days of the receipt of such refund, paid over to Seller (less out-of-pocket expenses incurred in connection with obtaining such refund and less any Taxes incurred in connection with the receipt of such refund). Buyer shall and shall cause its Affiliates to take reasonable steps to secure any such refund or credit that would otherwise be available. Buyer and the Company shall be entitled to all other refunds in respect of any Taxes of the Company (including to the extent such refund results from the carryback of a Tax Attribute relating to a Post-Accounts Date Taxable Period), and if such refunds are received by Seller or any Affiliate thereof, Seller shall promptly, and in any event within thirty (30) days of the receipt of any such refund, pay such refund over to, or as directed by, Buyer (less out-of-pocket expenses incurred in connection with obtaining such refund and less any Taxes incurred in connection with the receipt of such refund).
(b) After the Closing, Buyer shall be liable for and pay, and shall indemnify and hold harmless the Seller Indemnified Parties from and against, any Losses attributable to, without duplication, (i) Taxes imposed on the Company, or for which the Company may otherwise be liable, for any Post-Accounts Date Taxable Period ending on or before the Closing Date, provided, that Buyer’s cumulative liability with respect to such Taxes shall not exceed an amount equal to the excess of (I) the Deemed Tax Liability over (II) any amount paid by the Company to Seller pursuant to Section 10.05(b)(ii) or (iv) or to a Tax Authority pursuant to Section 10.02(a) with respect to such taxable periods, (ii) any breach or failure of Buyer to perform any of its covenants or obligations contained in this Article X, (iii) Taxes imposed or required to be paid by or in respect of the Company arising as a result of actions taken by the Company on the Closing Date after the Closing and (iv) Excluded Taxes.
(c) For purposes of Section 10.01(a) and Section 10.01(b), whenever it is liable necessary to determine the liability for Taxes of the Company for a partial period, the determination of the Taxes of the Company for the portion of the period ending on and including, and the portion of the period beginning after, the Accounts Date (or Closing Date) shall be determined by assuming that the period consisted of two (2) Taxable years or periods, one which ended at the close of the Accounts Date (or Closing Date) and the other which began at the beginning of the day after the Accounts Date (or Closing Date), and (a) in the case of real and personal property Taxes, such Taxes shall be apportioned between such two (2) Taxable years or periods on a per diem basis and (b) all other Taxes shall be allocated between such two (2) Taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Accounts Date (or Closing Date); provided, that exemptions, allowances or deductions that are calculated on an annual basis, such as the deduction for depreciation, shall be apportioned between such two (2) Taxable years or periods on a daily basis.
(d) Notwithstanding anything herein to the contrary, Buyer and Seller each shall pay, and shall indemnify Buyer or Seller, as applicable, against fifty percent (50%) of any real property transfer or gains Tax, transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
(e) To the extent of any inconsistency between this Article X and Article XIII, this Article X shall control as to Tax matters. For the avoidance of doubt, none of the limitations on indemnification contained in Article XIII shall apply to claims under this Section 8.2(a). --------------Article X.
Appears in 1 contract
Liability for Taxes. (i) Parent ----------- ------------------- Seller shall be liable for and pay, and pursuant to Article XI X (and subject to any applicable limitations thereunder) shall indemnify indemnify, defend and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising fromPurchaser against, any and all Taxes (A) imposed on any Company Holdco Group Member, or for which any Holdco Group Member may otherwise be liable, for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period (as hereinafter defined), the portion of such Straddle Period that ends on and includes the Closing Date, (B) imposed on any Holdco Group Member, pursuant to Treas. Reg. (S) 1.1502- ss. 1.1502-6 or similar provision of state state, local or local foreign law solely as a result of such Company Holdco Group Member having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basisthe Seller's Group (as hereinafter defined), (BC) that are withholding or payroll Taxes associated with any Payment (as defined in Section 6.11(a)(v)), (D) imposed as a result of any audit, written inquiry, claim or demand by a taxing authority disallowing a deduction or similar Tax item that was previously claimed with respect to a Payment in accordance with Section 6.11(a)(v) and that gave rise to a tax reduction for which Purchaser previously paid Seller in accordance with Section 6.11(a)(v) or (E) imposed as a result of any dividend or other transfer contemplated by Section 6.12; provided, however, that Seller shall not be liable for or pay, and shall not indemnify, defend or hold harmless Purchaser against, (I) any Taxes shown as a liability on the Company Financials (other than the Excluded Liabilities), (II) any Taxes that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of Holdco Capital Stock or the deemed purchase of shares of any of its subsidiaries, or that result from Purchaser, any Affiliate of Purchaser, any Holdco Group Member or any of their subsidiaries engaging in any activity or transaction that would cause the transactions contemplated by this Agreement to be treated a purchase or sale of assets of any Holdco Group Member or any of their subsidiaries for federal, state or local Tax purposes, and (III) any Taxes imposed on any Holdco Group Member or for which any Holdco Group Member may otherwise be liable as a result of transactions other than in the ordinary course of business and occurring on the Closing Date that are properly allocable (based on, among other relevant factors, factors set forth in Treas. Reg. ss. 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing (Taxes described in this proviso, hereinafter "Excluded Taxes"). Purchaser and Seller agree that, with respect to any Companytransaction described in clause (III) of the preceding sentence, each Holdco Group Member and all persons related to any Holdco Group Member under Section 267(b) of the Code immediately after the Closing shall treat the transaction for which any Company may otherwise be liableall federal income Tax purposes (in accordance with Treas. Reg. ss. 1.1502-76(b)(1)(ii)(B)), or with respect and (to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (Bextent permitted) for other income Tax purposes, as occurring at the beginning of the day following the Closing Date. Seller shall be entitled to any refund of (or credit for) Taxes allocable to any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (C) arising solely from the termination, as of the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (I) any incremental Taxes (Date other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law Tax refunds shown as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring an asset on the Closing Date after the Closing, and (III) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital (the Taxes described in this proviso being referred to as "Excluded Taxes")Company Financials. Parent -------------- shall be entitled to any refund For purposes of (or actual credit for when and as actually realized) Taxes for which it is liable under this Section 8.2(a). --------------6.11:
Appears in 1 contract
Liability for Taxes. (ia) Parent ----------- ------------------- Seller shall be liable for and payfor, and pursuant to Article XI shall indemnify hold Buyer, the Company and hold ---------- the Company Subsidiaries harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising fromagainst, any and or all Taxes (A) imposed on any due or payable by the Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision of state or local law solely as a result of such and/or the Company having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basis, (B) imposed on or with respect to any Company, for which any Company may otherwise be liableSubsidiaries, or by Buyer with respect to the HEA Membership Interests or Company and/or the SMMSLP LP InterestsCompany Subsidiaries, in each case described in this clause (B) for any taxable year or period that ends ending on or before the Closing Date and, with respect to any Straddle Period, and the portion of such Straddle Period ending on and including the Closing DateDate of any taxable period that includes (but does not end on) the Closing Date ("Pre-Closing Tax Period"), (Cand any Taxes arising after the Pre-Closing Tax Period relating to adjustments under Section 481(a) arising solely from the termination, as of the Code attributable to changes initiated during the Pre-Closing DateTax Period ("Section 481 Taxes"), including: (i) any liability of the Company and/or the Company Subsidiaries by reason of their being severally liable (pursuant to Treasury Regulations Section 1.1502-6, any analogous state, local or foreign provision, or otherwise), in whole or in part, for any tax of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 1504(a) of the CodeCode or any analogous state, local or foreign provisions) with respect to which the Company and/or the Company Subsidiaries may be or have been an includible corporation (as defined in Sections 1504(b) and (c) of which Parent is the parent corporationCode or such analogous state, local or foreign provisions) (Dan "Affiliated Group"); (ii) arising any liability that arises because the Company and/or the Company Subsidiaries ceases on the Closing Date to be a member of an Affiliated Group filing consolidated or combined returns; (iii) any liability that results from the distribution of or otherwise relating any transaction with respect to the Excluded Assets Canadian Subsidiary and/or French Subsidiary described in Section 5.12; and (iv) any and all sales, transfer, stamp, excise or similar Taxes applicable to the Excluded Business or (E) that are Section 338(h)(10) Taxessale to Buyer of the Shares, and the transactions contemplated hereby; provided, however, that -------- ------- Parent Seller shall not be liable for any Taxes due or paypayable by Buyer, the Company and/or the Subsidiaries: (i) resulting or arising from any action taken by or on behalf of Buyer, Buyer's Affiliates, the Company and/or the Company Subsidiaries on or after the Closing Date out of the ordinary course of business not contemplated by this Agreement; or (ii) for which a liability, which is identified as being for such Taxes, to the extent that such liability is accrued on the Closing Price Documents.
(b) Except for Section 481 Taxes, Buyer shall be liable for, and shall not indemnify or hold Seller harmless any Buyer Group Member from and against, any and all Taxes due or payable with respect to: (Ii) the business activities, transactions and assets of the Company and/or the Company Subsidiaries for any taxable tax period beginning after the Closing Date and the portion beginning the day after the Closing Date of any tax period that includes (but does not end on) the Closing Date ("Post-Closing Tax Period"); and (ii) any incremental action taken by or on behalf of Buyer, Buyer's Affiliates, the Company and/or the Company Subsidiaries out of the ordinary course of business on or after the Closing Date not contemplated by this Agreement.
(c) Any Taxes (other than Section 338(h)(10) Taxes) that result from real and personal property Taxes and any actual other Taxes not measured or deemed election under Section 338 measurable, in whole or in part, by net or gross income or receipts), with respect to the business, activities and assets of the Code Company and the Company Subsidiaries that relate to a tax period beginning before the Closing Date and ending after the Closing Date shall be apportioned between Seller and Buyer, as determined from the books and records of the Company consistent with the Code, regulations thereunder and other applicable Law, based on the actual operations of the Company and the Company Subsidiaries during the portion of such period ending on the Closing Date and the portion of such period beginning on the day after the Closing Date, and based on accounting methods, elections and conventions that do not have the effect of distorting income or any similar expenses, and each such portion of such period shall be deemed to be a tax period subject to the provisions of Sections 8.2(a) and 8.2(b). Buyer shall, with the approval of Seller (which shall not be unreasonably withheld), cause the Company and the Company Subsidiaries to file any required separate (nonconsolidated or noncombined) state, local and foreign Tax Returns for any such tax period, and Buyer shall pay, or cause to be paid, all state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10including interest and penalties relating thereto) Taxes) imposed shown as due on any Company, for which any Company may otherwise be liable or such returns with respect to the HEA Membership Interests or Company and/or the SMMSLP LP Interests as a result of actual transactions not Company Subsidiaries. In the event that Buyer and Seller are unable to agree on any Tax Returns described in the ordinary course immediately preceding sentence, the dispute shall be referred to a nationally recognized independent accounting firm mutually agreed upon by Buyer and Seller for resolution, and the determination of business occurring such accounting firm shall be binding upon Buyer and Seller, with the fees and expenses of such accounting firm borne equally by Buyer and Seller. Seller shall pay Buyer its share of any such Taxes (except to the extent accrued on the Closing Date Price Documents) pursuant to the filing of any such Tax Returns under the provisions of this Section 8.2(c) within five (5) business days after receipt of notice of such filing by Buyer, which notice shall set forth in reasonable detail the Closingcalculations regarding Seller's share of such Taxes.
(d) Any refunds or credits of Taxes that arise in, or are otherwise attributable to, a Pre-Closing Tax Period (other than a refund or credit arising from a carryback or a refund or credit reflected as an asset in the Closing Price Documents) of the Company and/or any Company Subsidiary net of any costs of collection shall be for the account of Seller. Any refunds or credits of Taxes that arise in, or are otherwise attributable to, a Post- Closing Tax Period of Buyer, the Company and/or any Company Subsidiary, including any refunds or credits that arise from the carryback of any deduction, loss or credit from a Post-Closing Tax Period to a Pre-Closing Tax Period or a refund or credit reflected as an asset in the Closing Price Documents, shall be for the account of Buyer. Buyer shall cause the Company and the Company Subsidiaries to use their best efforts to seek and promptly to forward to, or to reimburse, Seller for any refunds or credits due to Seller after receipt thereof, and (III) Seller shall use its best efforts to seek and promptly to forward to, or reimburse, Buyer for any Taxes shown as a liability refunds or reserve on the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital (the Taxes described in this proviso being referred to as "Excluded Taxes"). Parent -------------- shall be entitled to any refund of (or actual credit for when and as actually realized) Taxes for which it is liable under this Section 8.2(a). --------------credits due Buyer after receipt thereof.
Appears in 1 contract
Liability for Taxes. (i) Parent ----------- ------------------- Sellers shall be liable for and pay, and pursuant each Seller (jointly and severally and pro rata in accordance with their Aggregate Percentage Interests) agrees to Article XI shall indemnify and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising fromagainst, (x) any and all Taxes (A) and associated Losses imposed on any Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision of state or local law solely as a result of such Company having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basis, (B) imposed on or with respect to any Company, for which any Company may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) Acquired Companies for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing DateDate and (y) any and all Taxes and associated Losses imposed on any of the Acquired Companies, (C) arising solely from or for which any of the terminationAcquired Companies may otherwise be liable, as a result of the Closing Date, of any Company that is a corporation as being or having been a member of the any “affiliated group group” (as defined in Section 1504 1504(a) of the Code without regard to the limitations contained in Section 1504(b) of the Code but taking into account the provisions of Section 1504(c) of the Code, as relevant) that, at any time on or before the Closing Date, includes or has included any of the Acquired Companies, or any other group of corporations filing Tax Returns on a combined, consolidated, unitary or similar basis that, at any time on or before the Closing Date, includes or has included any of the Acquired Companies (a “Company Group”) (including Taxes for which Parent is any of the parent corporationAcquired Companies may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, (D) arising from the distribution local or foreign law as a result of being or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxeshaving been a member of a Company Group); provided, however, that -------- ------- Parent Sellers shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (I) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date after the Closing, and (IIIA) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and not excluded included in Closing Date Working Capital, (B) any Taxes imposed on any of the Acquired Companies or for which any of the Acquired Companies may otherwise be liable as a liability in determining Net Working Capital result of non-ordinary course transactions occurring on the Closing Date that are properly allocable to the portion of the Closing Date after the Closing, and (C) any Taxes that result from any actual or deemed election by Buyer or an Affiliate of Buyer under Section 338 of the Code or any similar provisions of U.S. state, local or non U.S. law as a result of the purchase of the Shares (Taxes described in this proviso being referred to as "proviso, hereinafter “Excluded Taxes"”). Parent -------------- Sellers shall be entitled to any refund of (or actual credit for when and as actually realizedfor) Taxes allocable to any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date and which Taxes are indemnifiable pursuant to this Section 8.1(a) other than refunds taken into account as an asset in Closing Date Working Capital; provided, however, that any refund created by a Transaction Tax Deduction paid to Seller hereunder shall reduce dollar-for-dollar the $5 million limitation in Section 8.1(a)(vi). Upon the request of the Stockholder Representative, Buyer shall file (or cause to be filed) all Tax Returns (including amended Tax Returns) or other documents claiming any refunds or credits to which Sellers are entitled pursuant to the preceding sentence. Buyer shall inform the Stockholder Representative promptly after the end of each calendar year as to whether such refund or credit is, or with the taking of action would be, available.
(ii) Buyer shall be liable for and pay, and shall indemnify and hold harmless each Seller Group Member from and against, (A) any and all Taxes imposed on any of the Acquired Companies, or for which any of the Acquired Companies may otherwise be liable, for any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date and (B) Excluded Taxes.
(iii) For purposes of Sections 8.1(a)(i) and (a)(ii), whenever it is liable under necessary to determine the liability for Taxes of the Acquired Companies for a Straddle Period, the determination of such Taxes for the portion of the Straddle Period ending on and including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date, and items of income, gain, deduction, loss or credit of the Acquired Companies or with respect to the Shares for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Acquired Companies were closed at the close of the Closing Date; provided, however, that (x) transactions occurring on the Closing Date that are properly allocable to the portion of the Closing Date after the Closing shall be allocated to the taxable year or period that is deemed to begin at the beginning of the day following the Closing Date and (y) exemptions, allowances or deductions that are calculated on an annual basis, such as the deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iv) Notwithstanding anything herein to the contrary, any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Section 8.2(a). --------------Agreement shall be borne 50% by Buyer and 50% by Sellers.
Appears in 1 contract
Liability for Taxes. (i) Parent ----------- ------------------- Chart US shall be liable for and pay, and pursuant to Article XI shall (and subject to the limitations thereof, except, for the avoidance of doubt, the limitations of Section 11.1(a)(x), (y), and (z)), Chart US agrees to indemnify and hold ---------- harmless each Buyer Buyer’s Group Member from and against against, any Taxes imposed on any Acquired Company for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and all Losses including the Closing Date (the “Tax Indemnity”); provided, however, that Chart US shall not be liable for or pay, and Expenses incurred by such Buyer shall not indemnify or hold harmless any Buyer’s Group Member in connection with or arising fromfrom and against, any and all Taxes (A) any Taxes imposed on any Acquired Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision of state or local law solely for which any Acquired Company may otherwise be liable as a result of such Company having been a member transactions occurring on the Closing Date that are allocable to the portion of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basisthe Closing Date after the Closing, (B) imposed on subject to Section 8.1(g), any Taxes that result from any actual or with respect deemed election under Section 338 of the Code or any similar provisions of U.S. state, local or non-U.S. law as a result of the purchase of the Shares or that result from Buyer, any Affiliate of Buyer, or any Acquired Company engaging in any activity or transaction that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Acquired Company for Tax purposes, (C) notwithstanding anything to the contrary herein, any Taxes resulting from a sale of any Acquired Company by Buyer, (D) any Taxes to the extent resulting from a breach by Buyer of any covenant or agreement contained in this Agreement, including any covenant or agreement contained in this Section 8.1, and (E) any Taxes described under Section 8.1(a)(iv) (Taxes described in the foregoing clauses (A) through (E), “Excluded Taxes”). Sellers shall be entitled to any Company, for which any Company may otherwise be liable, refund of (or with respect credit for) Taxes allocable to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, in each instance, less any Taxes on such refund or credit, except to the extent such refund or credit was included as an asset in the calculation of Closing Net Working Capital. Upon the request of Sellers, Buyer shall, and shall cause each Acquired Company and its Affiliates to, take all actions necessary, and all actions reasonably requested by Sellers, to timely claim any refunds to which any Seller is entitled pursuant to the preceding sentence, including filing (Cor causing to be filed) arising solely all Tax Returns (including amended Tax Returns) or other documents claiming any such refunds. The amount due to Sellers shall be payable ten (10) days after receipt of any such refund from the terminationapplicable Governmental Body (or, as if the refund is in the form of credit or offset, ten (10) days after the due date of the Closing Date, of any Company that is a corporation as a member of the affiliated group Tax Return claiming such credit or offset).
(as defined in Section 1504 of the Codeii) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent Buyer shall not be liable for or and pay, and pursuant to Article XI (and subject to the limitations thereof) shall not indemnify or and hold harmless any Buyer each Seller Group Member from and against, (IA) any incremental and all Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Acquired Company, or for which any Acquired Company may otherwise be liable liable, for any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the HEA Membership Interests or the SMMSLP LP Interests as a result portion of actual transactions not in the ordinary course of business occurring on such Straddle Period beginning after the Closing Date after the ClosingDate, and (IIIB) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital (the Taxes described in this proviso being referred to as "Excluded Taxes"). Parent -------------- Except as otherwise provided herein, Buyer shall be entitled to any refund of (or actual credit for when and as actually realizedfor) (x) Taxes described in the foregoing clause (A) and (y) Excluded Taxes.
(iii) For purposes of Section 8.1(a)(i) and Section 8.1(a)(ii), to the extent permissible under applicable Requirements of Law, the parties agree to elect (and to cause each Acquired Company to elect) to have each Tax year of each Acquired Company end on the Closing Date and, if such election is not permitted or required in a jurisdiction with respect to a specific Tax such that any Acquired Company is required to file a Tax Return for a Straddle Period, to utilize the following conventions for determining the amount of Taxes attributable to the portion of the Straddle Period ending on the Closing Date: (x) in the case of property Taxes and other similar Taxes imposed on a periodic basis, the amount attributable to the portion of the Straddle Period ending on the Closing Date shall equal the Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which it is liable under the number of calendar days in the portion of the period ending on the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period; provided, however, if as a result of the transactions contemplated by this Section 8.2(aAgreement, the value of any asset is reassessed for purposes of determining the amount of any property or other Tax, any resulting increase in Tax for such Straddle Period shall be treated as being solely with respect to the portion of the Straddle Period beginning on the date after the Closing Date; and (y) in the case of all other Taxes (including income Taxes, sales Taxes, employment Taxes and withholding Taxes), the amount attributable to the portion of the Straddle Period ending on the Closing Date shall be determined as if such Acquired Company filed a separate Tax Return with respect to such Taxes for the portion of the Straddle Period ending as of the end of the day on the Closing Date using a “closing of the books methodology.” For purposes of applying the foregoing, (A) any item determined on an annual or periodic basis (including amortization and depreciation deductions) for income Tax purposes shall be allocated to the portion of the Straddle Period ending on the Closing Date based on the relative number of days in such portion of the Straddle Period as compared to the number of days in the entire Straddle Period; (B) any Tax or item of income, gain, loss, deduction or credit from a transaction occurring on the Closing Date shall be allocated to the portion of the Straddle Period beginning on the day after the Closing Date; and (C) any item of deduction attributable to any Transaction Expenses shall be allocated to the portion of the Straddle Period ending on the Closing Date.
(iv) Notwithstanding anything herein to the contrary, all transfer, documentary, sales, use, stamp, registration, value added and other such Taxes incurred in connection with this Agreement (including any real property transfer Tax and any other similar Tax) shall be borne by Buyer. --------------With respect to Taxes described in the preceding sentence, Sellers shall reasonably cooperate with Buyer in preparing and filing any such Tax Returns as may be necessary, and the costs of preparing such Tax Returns shall be borne by Buyer.
Appears in 1 contract
Liability for Taxes. (i) Parent ----------- ------------------- USF shall be liable for and payand, and pursuant to Article XI VIII, USF shall indemnify and hold ---------- harmless each Buyer Group Member from and the Members against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, any and all Taxes (whether assessed or unassessed) (A) imposed on applicable to any Company Member (1) attributable to a Pre-Closing Period, (2) pursuant to Treas. Reg. ss.1.1502-6 (Sor any comparable provision under state, local or foreign law or regulation imposing several liability upon members of a consolidated, combined, affiliated or unitary group) 1.1502- 6 for any Pre-Closing Period, (3) under any agreement entered into on or prior to the Closing Date pursuant to which any Member is liable for the Taxes of any other Person (except for customary agreements to indemnify lenders or security holders in respect of Taxes), (4) as a result of any Member having become liable, in a transaction prior to the Closing, as transferee or successor for Taxes of any other Person, or (5) which would have been attributable to a Pre-Closing Period but for (x) Code ss. 481 (or any corresponding or similar provision of state state, local or local law solely foreign income Tax law) as a result of such Company having been a member change in method of accounting for a Pre-Closing Period, or (y) a "closing agreement" as described in Code ss. 7121 (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date; or (z) Treasury Regulations under Code ss.1502 (or any corresponding or similar provision of state, local or foreign Tax law) as a result of a group of corporations joining deferred intercompany transaction, excess loss account or similar event which arose in filing Tax Returns on a consolidatedPre-Closing Period, combined or unitary basis, (B) attributable to any Stamp Duty Clawbacks; provided, however, (I) in the case of Taxes imposed on a Joint Venture Entity USF shall be liable to the Buyer for the product of such Taxes and the percentage ownership of the Group in such Joint Venture Entity as set forth opposite the name of such entity on Schedule A-3; (II) USF shall not be liable for any Taxes (other than Income Taxes) to the extent accrued on the books and records of the relevant Member and reflected in the Closing Date Adjusted Net Assets; (III) any Taxes imposed on any Member as a result of transactions occurring on the Closing Date that are properly allocable (based on, among other relevant factors, factors set forth in Treas. Reg. ss. 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing shall not be considered attributable to a Pre-Closing Period; and (IV) USF shall not be liable for any interest or penalties attributable to the negligence or bad faith of Buyer or its Affiliates. USF shall be entitled to any refund of (or credit for) Taxes allocable to any Pre-Closing Period unless such refund (or credit) is reflected in Closing Date Adjusted Net Assets. Buyer or the appropriate Member shall pay over to USF any such refund or the amount of any credit within fifteen (15) days after receipt or crediting.
(ii) Except as provided in Section 6.2(a)(i), Buyer shall be liable for and, pursuant to Article VIII, Buyer shall indemnify and hold harmless USF and its Related Parties against all Taxes (whether assessed or unassessed) applicable to any Member (A) attributable to (1) taxable years or periods beginning after the Closing Date, (2) transactions occurring on the Closing Date that are properly allocable (based on, among other relevant factors, factors set forth in Treas. Reg. ss. 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing, and (3) with respect to any CompanyStraddle Period, for which any Company may otherwise be liable, the portion of such Straddle Period beginning after the Closing Date or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for to the extent such Taxes (other than Income Taxes) are accrued on the books and records of the relevant Member and reflected in the Closing Date Adjusted Net Assets. Except as otherwise provided herein, Buyer shall be entitled to any refund of (or credit for) Taxes allocable to any taxable year or period that ends on or before begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date.
(iii) For purposes of Section 6.2(a)(i) and Section 6.2(a)(ii), whenever it is necessary to determine the liability for Taxes for a Straddle Period, the determination of the Taxes for the portion of the Straddle Period ending on and including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other of which began at the beginning of the day following the Closing Date, and items of income, gain, deduction, loss or credit for the Straddle Period shall be allocated between such two taxable years or periods on a "closing of the books basis" by assuming that the relevant books including the relevant books and records of any Joint Venture Entity (whether or not taxed on a flow-through basis) were closed at the close of the Closing Date; provided, however, that (A) transactions occurring on the Closing Date that are properly allocable (based on, among other relevant factors, factors set forth in Treas. Reg. ss. 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing shall be allocated to the taxable year or period that is deemed to begin at the beginning of the day following the Closing Date, and (B) exemptions, allowances or deductions that are calculated on an annual basis, such as the deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis and Taxes that are computed on a periodic basis, such as property Taxes, shall also be so apportioned on a daily basis. Notwithstanding the foregoing provisions of this paragraph (iii), if the transactions contemplated by this Agreement result in the reassessment of the value of any property owned by any Member for property Tax purposes, or the imposition of any property Taxes at a rate which is different than the rate that would have been imposed if such transactions had not occurred, then (x) the portion of such property Taxes for the portion of the Straddle Period ending on and including the Closing DateDate shall be determined on a daily basis, using the assessed value and Tax rate that would have applied had such transactions not occurred, and (Cy) arising solely from the terminationportion of such property Taxes for the portion of such Straddle Period beginning after the Closing Date shall be the total property Taxes for the Straddle Period minus the amount described in clause (x) of this sentence. Sales and use Taxes (and their foreign equivalents, including VAT) shall be deemed to accrue in accordance with GAAP.
(iv) USF or Buyer, as the case may be, shall provide reimbursement for any Tax paid by one Party all or a portion of which is the responsibility of the Closing Date, other Party in accordance with the terms of this Section 6.2(a). Within a reasonable time prior to the payment of any Company that is a corporation as a member such Tax, the Party paying such Tax shall give written notice to the other Party of the affiliated group (as defined in Section 1504 of Tax payable and the Code) of portion which Parent is the parent corporationliability of each Party, although failure to do so will not relieve the other Party from its liability hereunder.
(Dv) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; providedIf, however, that -------- ------- Parent shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (I) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of any action, suit, investigation, audit, claim, assessment or amended Tax Return, there is any change after the purchase Closing Date in an item of the Sharesincome, the HEA Membership Interests gain, loss, deduction, credit or the SMMSLP LP Interests, or the deemed purchase amount of shares or equity of any Conveyed Companies Subsidiary, or Tax that result from Buyer, any Affiliate of Buyer or any Company engaging results in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local an increase in Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, liability for which any Company may USF would otherwise be liable or with respect pursuant to the HEA Membership Interests or the SMMSLP LP Interests as this Section 6.2(a), and such change results in a result of actual transactions not net decrease in the ordinary course Tax liability of business occurring on Buyer for taxable years or periods beginning after the Closing Date (including the portion of any Straddle Period beginning after the ClosingClosing Date), and USF shall be liable only for the net amount of such increase after taking into account such decrease in accordance with the provisions of this Section 6.2(a) (IIIand, to the extent such increase in Tax liability is paid to a taxing authority by USF or any Affiliate thereof, Buyer shall pay USF an amount equal to such decrease).
(vi) any Taxes shown as a liability or reserve on Notwithstanding anything to the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital (the Taxes described contrary in this proviso being referred Agreement, nothing in Section 3.7 shall cause USF to as "Excluded Taxes"). Parent -------------- shall be entitled liable to Buyer for any amounts relating to any refund of (or actual credit for when and as actually realized) Taxes for which it USF is not expressly liable under pursuant to this Section 8.2(a). --------------6.2.
Appears in 1 contract
Sources: Stock Purchase Agreement (Pall Corp)
Liability for Taxes. (i) Parent ----------- ------------------- Seller shall be liable for and paypay and, and pursuant to Article XI (and subject to the limitations thereof), shall indemnify and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, the following amounts: (A) any and all Taxes (A) imposed on the Company or any Company Subsidiary pursuant to Treas. Reg. (S) 1.1502- §1.1502-6 or similar provision of state state, local or local foreign law solely as a result of the Company or such Company Subsidiary having been a member of a group of corporations joining in filing the Seller’s Group or otherwise having filed any Tax Returns Return for any period beginning before the Closing Date on a combined, consolidated, combined affiliated or unitary basisbasis with a Person that is not, after the Closing, a Buyer Group Member, (B) imposed on the Company or with respect to any CompanySubsidiary, or for which the Company or any Company Subsidiary may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (C) arising solely from the termination, as of the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent Seller shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (I) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, Shares or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, Subsidiary pursuant to this Agreement or that result from Buyer, Buyer or any Affiliate of Buyer Buyer, the Company or any Company Subsidiary engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause causes the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of the Company or any Company (other than HEA) Subsidiary for federal, state or local Tax purposes, and (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on the Company or any CompanySubsidiary, or for which the Company or any Company Subsidiary may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date after that are properly allocable (based on, among other relevant factors, factors set forth in Treas. Reg. §1.1502-76(b)(1)(ii)(B)) to the Closing, and (III) any Taxes shown as a liability or reserve on portion of the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital after the Closing (the Taxes described in this proviso being referred to as "“Excluded Taxes"”), (C) any and all Taxes, costs or other expenses incurred by the Company, any Subsidiary or any Buyer Group Member as a result of a breach of any representation or warranty set forth in Section 5.7 or of any covenant contained in this Section 8.2, and (D) any and all Taxes arising as a result of the transactions described in Section 7.7. Parent -------------- Buyer and Seller agree that, with respect to any transaction described in clause (II) of the preceding sentence, the Company and all persons related to the Company under Section 267(b) of the Code immediately after the Closing shall treat the transaction for all federal income Tax purposes (in accordance with Treas. Reg. § 1.1502-76(b)(1)(ii)(B)), and (to the extent permitted) for other income Tax purposes, as occurring at the beginning of the day following the Closing Date. Seller shall be entitled to any refund of (or actual credit for when and as actually realizedfor) Taxes allocable to any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date.
(ii) Buyer shall be liable for and pay, and pursuant to Article XI (and subject to the limitations thereof) shall indemnify and hold harmless each Seller Group Member from and against the following amounts: (A) any and all Taxes imposed on the Company or any Subsidiary, or for which it is liable under this Section 8.2(athe Company or any Subsidiary may otherwise be liable, for any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date and (B). --------------
Appears in 1 contract
Liability for Taxes. (ia) Parent ----------- ------------------- Seller shall be liable for and paypay an amount equal to, and pursuant to Article XI shall indemnify and hold ---------- harmless each the Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, any and (i) all Taxes (A) imposed on any Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision of state or local law solely as a result of such Company having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basis, (B) imposed on or with respect to any Acushnet Company, or for which any an Acushnet Company may otherwise be liable, for, or with respect to the HEA Membership Interests or the SMMSLP LP Intereststo, in each case described in this clause (B) for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (Cii) arising solely from all Taxes of any Person (other than the terminationAcushnet Companies) that are imposed on any Acushnet Company as a transferee or successor, as of by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing Date, (iii) all Taxes of Seller or any Affiliate of Seller which is or has ever been affiliated with any Acushnet Company, or with whom any Acushnet Company that is a corporation as a member otherwise joins, or has ever joined, in filing any consolidated, combined or unitary Tax Return prior to the Closing Date under Treas. Reg. § 1.1502-6 or similar provision of foreign, state or local law, and (iv) all Taxes arising from or related to the breach by Seller of the affiliated group (as defined representations provided in Section 1504 of the Code4.08(n), Section 4.08(q), Section 4.08(r), Section 4.08(s) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are and Section 338(h)(10) Taxes4.08(t); provided, however, that -------- ------- Parent Seller shall not be liable for or pay, and shall not indemnify or hold harmless the Buyer Group from and against, any Taxes resulting from any Buyer Tax Act.
(b) Any Tax refunds that are received by or with respect to any Acushnet Company, and any amounts credited against or with respect to Taxes to which any Acushnet Company becomes entitled, that relate to any taxable year or portion thereof that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, shall be for the account of the Seller, and Buyer shall pay (or cause the relevant Acushnet Company to pay) over to the Seller any such refund or the amount of any such credit actually received in cash within thirty (30) days after the actual receipt thereof in the case of a refund, or within thirty (30) days after the filing of any Tax return in which the credit is used, except to the extent Seller Group Member has an indemnification or payment obligation under this Agreement for such Taxes that has not been satisfied; provided, however, that Seller shall not be entitled to such Tax refunds to the extent reflected as a Current Asset in the Final Closing Statement or that result from a carryback of a net operating loss or other Tax attribute from a taxable period or portion thereof beginning after the Closing Date.
(c) Buyer shall be liable for and pay, and shall indemnify the Seller Group from and against, (Ii) any incremental all Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interestsimposed on an Acushnet Company, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Acushnet Company may otherwise be liable liable, for, or with respect to the HEA Membership Interests to, any taxable year or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date, (ii) any Transfer Taxes (except for any Taxes arising out of actions taken prior to the Closing, which shall be borne by Seller), and (IIIiii) any Taxes shown as a liability imposed on any of the Acushnet Companies or reserve on the Closing Date Balance Sheet Seller Group resulting from any Buyer Tax Act, and not excluded as a liability in determining Net Working Capital (iv) Damages arising from or related to the Taxes described in this proviso being referred to as "Excluded Taxes"). Parent -------------- shall be entitled to any refund breach by Buyer of (or actual credit for when and as actually realized) Taxes for which it is liable under this Section 8.2(a). --------------Section
Appears in 1 contract
Liability for Taxes. (i) Seller Parent ----------- ------------------- shall be liable for and pay, and pursuant agrees to Article XI shall indemnify and hold ---------- harmless Buyer and each Buyer Group Member from and of its Affiliates (including the Business Subsidiaries) against any and all Taxes and other Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, any and all Taxes respect of (A) imposed on Taxes that arise under Treasury Regulation Section 1.1502-6 or any Company pursuant to Treas. Reg. (S) 1.1502- 6 analogous or similar provision of state state, local or local foreign law solely as a result or regulation by reason of such Company any Business Subsidiary having been a member of a group of corporations joining in filing Consolidated Tax Returns on a consolidated, combined or unitary basisGroup at any time prior to the Closing, (B) U.S. federal, state and local Taxes, as well as all non-U.S. Taxes imposed on on, allocated or with respect attributable to any Company, for which any Company may otherwise be liable, or incurred or payable by a Business Subsidiary or with respect to the HEA Membership Interests Business or the SMMSLP LP InterestsPurchased Assets, in each case described in this clause (B) for with respect to any taxable year years or period that ends periods ending on or before prior to the Closing Date and, or with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing DateDate (each such taxable year, period or portion of a Straddle Period, a “Pre-Closing Tax Period”), together with any interest, penalty or additions to Tax accruing after the Closing on Taxes described in this clause (B), (C) arising solely from the termination, as any liability imposed on any Business Subsidiary (or any of the Closing Date, its Affiliates) for Taxes of any Company that is a corporation other Person as a member of transferee or successor, by contract or assumption (excluding any ordinary course contracts the affiliated group (as defined in Section 1504 of the Code) primary subject matter of which Parent is not Tax), or operation of law resulting from actions taken or agreements entered into prior to the parent corporationClosing, (D) arising from any and all Taxes imposed on any Business Subsidiary (or any of its Affiliates) or otherwise imposed with respect to the distribution operation of the Business or the ownership or use of the Purchased Assets as a result of or otherwise relating to in connection with the Excluded Assets or the Excluded Business or Pre-Closing Reorganization and (E) that are any and all Taxes of any Business Subsidiary (or their Affiliates) or otherwise imposed with respect to the operation of the Business or the ownership or use of the Purchased Assets resulting from the failure of the representations and warranties contained in Section 338(h)(105.6(a)(viii), 5.6(c), 5.6(d)(i), 5.6(f) or 5.6(i) or the failure of Seller Parent or any Selling Party, and prior to the Closing any Business Subsidiary, to perform any covenant contained in this Agreement with respect to Taxes, in each case, determined without regard to any qualification related to materiality or Knowledge contained therein; provided, however, that -------- ------- Seller Parent shall not be liable for or pay, and shall not indemnify or hold harmless Buyer or any Buyer Group Member of its Affiliates from and againstagainst any Taxes to the extent taken into account as a liability in the calculation of the Closing Working Capital as finally determined pursuant to Section 4.5, (I) and any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Equity Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, Business Subsidiary or that result from Buyer, any Affiliate of Buyer or any Company Business Subsidiary engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions any sale of Equity Interests contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) Business Subsidiary for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date after the Closing, and (III) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital purposes (the Taxes described in this proviso being referred to as "“Excluded Taxes"”). Notwithstanding any other provision of this Agreement and for the avoidance of doubt, the limitations in Section 11.1 shall not apply to this Section 8.2(a)(i). With respect to U.S. Taxes other than income taxes incurred by Buyer, Seller Parent -------------- shall be entitled required to indemnify and hold harmless under this Section 8.2(a)(i) only if the aggregate amount of such Taxes and other Losses and Expenses in respect of such Taxes suffered by Buyer or any refund of its Affiliates (including the Business Subsidiaries) exceeds $200,000 (it being understood that, if such amount is exceeded, Seller Parent shall bear full indemnification responsibility for the full amount of such Taxes and other Losses and Expenses in respect of such Taxes).
(ii) From and after the Closing, Buyer shall be liable for and pay, and agrees to indemnify and hold harmless Seller Parent and each Selling Party from and against, any and all Taxes and other Losses and Expenses in respect of Taxes that are (A) imposed on or actual credit for when and as actually realized) payable by the Business Subsidiaries, or with respect to the Business or the Purchased Assets after the Closing Date, but in each case, other than Taxes or Losses in respect of Taxes for which it Seller Parent is liable required to indemnify Buyer and any of its Affiliates (including the Business Subsidiaries) pursuant to Section 8.2(a)(i) and (B) Excluded Taxes.
(iii) For purposes of Section 8.2(a)(i) and (ii), any Taxes imposed with respect to a Straddle Period shall be apportioned between the portion of such period ending on the Closing Date and the portion beginning after the Closing Date (A) in the case of real and personal property Taxes, by apportioning such Taxes on a per diem basis and (B) in the case of all other Taxes, on the basis of a closing of the books as of the open of business on the Closing Date; provided, however, that exemptions, allowances or deductions that are calculated on an annual basis, such as property Taxes, shall be apportioned on a daily basis. For purposes of any amount required to be included under Section 951(a) of the Code with respect to any taxable period of a Business Subsidiary that is not a United States Person under Section 7701(a)(30) of the Code that includes (but does not end on) the Closing Date, the taxable year of the relevant Business Subsidiary giving rise to the income required to be included under Section 951(a) of the Code shall be deemed to close in the same manner as described above and the amount of income required to be included under Section 951(a) of the Code to be allocated to the partial period ending at the close of the Closing Date shall be determined by means of a closing of the books and records as of the close of business on the Closing Date.
(iv) Notwithstanding anything herein to the contrary, each of Buyer and Seller Parent shall pay, and agrees to indemnify and hold harmless the other party from and against, 50% of all real property transfer or gains Taxes, sales Taxes, use Taxes, stamp Taxes, stock transfer Taxes or other similar Taxes imposed on the transactions contemplated by this Section 8.2(aAgreement (collectively, “Transfer Taxes”). --------------, other than any such Taxes resulting from or arising in connection with the Pre-Closing Reorganization, which shall be the responsibility of Seller Parent, and other than any Canadian VAT that if paid by Buyer would be refunded or credited to Buyer, which shall be the responsibility of Buyer.
(v) Each of Buyer and Seller Parent agree that an election under subsection 256(9) of the Income Tax Act (Canada) will be will be filed with respect to ▇▇▇▇▇▇▇▇ Canada Holding N.S. ULC.
Appears in 1 contract
Sources: Purchase Agreement (Aon PLC)
Liability for Taxes. (i) Parent ----------- ------------------- shall be liable for and payTo the extent provided in Section 8.1, and pursuant to Article XI 8 (and subject to the limitations thereof), the HPI Indemnitors agree to and shall indemnify and hold ---------- the Purchaser, and its directors, officers, employees, Affiliates (including HPI and any of the Acquired Companies if the Closing occurs), agents and assigns harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with resulting from, based upon or arising fromout of, any and all Taxes directly or indirectly: (A) Taxes imposed on any Acquired Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision of state or local law solely as a result of such Company having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basis, (B) imposed on or with respect to any Company, for which any Company may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (Bother than Sioux City) for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (B) Taxes imposed on or related to HEC for any taxable year or period and (C) arising solely from the termination, Taxes imposed on any Acquired Company as a result of the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) TaxesHPI Redemption; provided, however, that -------- ------- Parent no HPI Indemnitor shall not be liable for or pay, and no HPI Indemnitor shall not indemnify or hold harmless any Buyer Group Member Person from and against, (I) any incremental Taxes taken into account as a liability or reserve (other than Section 338(h)(10whether taken into account as a liability or reserve, as an offset to an asset, or otherwise) Taxesin determining the final Closing Working Capital of HPI, (II) any Taxes that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase or redemption of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, HPI Common Stock or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, Acquired Company or that result from Buyerthe Purchaser, any Affiliate of Buyer the Purchaser, or the Purchaser or any Acquired Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Acquired Company (other than HEA) for federal, state state, local or local other Tax purposes, (IIIII) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, Acquired Company or for which any Acquired Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date that are properly allocable (based on, among other relevant factors, factors set forth in Treas. ▇▇▇.▇▇. 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing, (it being understood and agreed that in no event shall the HPI Redemption be regarded as a transaction described in this clause (III)), (IV) Taxes imposed as a result of or in connection with (i) any dividends paid by Sioux City to HPI on or after December 31, 2001, (ii) the conversion of Principal Financial Group or Liberty Mutual Insurance Company to stock form from mutual insurance companies, or (iii) the sale of HPI's capital stock in Sioux City pursuant to an exercise by ▇▇▇▇▇▇▇▇ of its rights under the Buy and Sell Agreement, dated as of March 1, 1992, (V) any Taxes shown as resulting from a liability sale of any Acquired Company by the Purchaser or reserve on any Affiliate of the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital Purchaser (the Taxes described in this proviso being referred to as proviso, hereinafter "Excluded Taxes"). Parent -------------- Except to the extent taken into account as an asset (whether taken into account as an asset, as an offset to a liability or reserve, or otherwise) in determining the final Closing Working Capital of HPI, or except as provided in the last sentence of paragraph (a)(ii) of this Section 6.13, the HPI Stockholders shall be entitled to any refund of (or actual credit for when and as actually realizedfor) Taxes for which it any HPI Indemnitor is liable under this Agreement (including, without limitation, any refund of, or credit for, Taxes of HEC or any Acquired Company due to the overpayment of such Taxes prior to the Closing Date).
(ii) To the extent provided in Section 8.2(a8.2, and pursuant to Article 8 (and subject to the limitations thereof). --------------, the Purchaser agrees to indemnify and hold the HPI Stockholders and their respective directors, officers, employees, Affiliates, agents and assigns harmless (after the Closing) from and against any and all Losses of the HPI Stockholders resulting from, based upon or arising out of, directly or indirectly: (A) Taxes imposed on any Acquired Company (other than Sioux City) for any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date and (B)
Appears in 1 contract
Liability for Taxes. (i) Parent ----------- ------------------- Dover US shall be liable for and pay, and pursuant subject to the limitations made applicable thereto in Article XI shall XI, Dover US agrees to indemnify and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses of or incurred by such Buyer Group Member in connection with or arising from, (x) any and all Taxes (A) of or imposed on any of the Acquired Companies for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date (including any Section 338(h)(10) Taxes), (y) any Taxes imposed on an Acquired Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision of state or local law solely as a result of such Company having been prior to the Closing a member of a group of corporations joining in filing Tax Returns on a an affiliated, consolidated, combined or unitary basisgroup for Tax purposes, (z) any breach of any warranty or any inaccuracy of any representation contained in Section 5.6(d) or (e) (any such Tax, other than an Excluded Tax, a “Seller Indemnified Tax”); provided, however, that Dover US shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (A) any Tax to the extent shown as a liability or reserve on the Closing Date Balance Sheet and included as a liability in the calculation of Closing Date Working Capital, (B) any Tax imposed on any of the Acquired Companies or with respect to any Company, for which any Company of the Acquired Companies may otherwise be liableliable as a result of any transaction outside the ordinary course of business occurring on the Closing Date after the Closing at the direction of Buyer or (C) any Taxes (other than Section 338(h)(10) Taxes and any Taxes resulting from the sale of ▇▇▇▇▇▇▇ Aerospace) that result from any actual or deemed election under Section 338(h)(10) of the Code or any similar provisions of U.S. state, local or non-U.S. law as a result of the purchase of the Shares or that result from Buyer, any Affiliate of Buyer, or with respect any of the Acquired Companies engaging in any activity or transaction that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Acquired Company for Tax purposes, and (D) notwithstanding anything to the HEA Membership Interests or contrary herein, any Taxes resulting from a sale of any of the SMMSLP LP Interests, in each case Acquired Companies by Buyer (Taxes described in this clause proviso, “Excluded Taxes”). Dover US shall be entitled to any refund of (Bor credit for) for Taxes received by a Buyer Group Member that is attributable to an Acquired Company allocable to any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, except to the extent such refund or credit was included as an asset in the calculation of Closing Net Working Capital. Upon the request of Dover US, Buyer shall file (Cor cause to be filed) all Tax Returns (including amended Tax Returns) or other documents claiming any refunds to which Dover US is entitled pursuant to the preceding sentence.
(ii) Buyer shall be liable for and pay, and subject to the limitations made applicable thereto in Article XI shall indemnify and hold harmless each Seller Group Member from and against any Losses and Expenses of or incurred by such Seller Group Member in connection with or arising solely from from, (A) any and all Taxes imposed on any of the terminationAcquired Companies, as or for which any of the Acquired Companies may otherwise be liable, for any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date (other than any such Tax that is a Seller Indemnified Tax) and (B) Excluded Taxes.
(iii) In the case of any Taxes attributable to an Acquired Company for a Straddle Period, the allocation of such Taxes between the portion of the Straddle Period ending on and including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined (x) in the case of real property and other ad valorem Taxes, by apportioning to each day in such Straddle Period an equal portion of such Taxes and (y) in the case of other Taxes, by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date, and items of income, gain, deduction, loss or credit of the Acquired Companies for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Acquired Companies were closed at the close of the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (IA) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the non-ordinary course of business transactions occurring on the Closing Date after that are properly allocable to the Closing, and (III) any Taxes shown as a liability or reserve on portion of the Closing Date Balance Sheet after the Closing shall be allocated to the taxable year or period that is deemed to begin at the beginning of the day following the Closing Date and not excluded (B) exemptions, allowances or deductions that are calculated on an annual basis, such as the deduction for depreciation, shall be apportioned between such two taxable years or periods on a liability daily basis.
(iv) Notwithstanding anything herein to the contrary, all transfer, documentary, sales, use, stamp, registration, value added and other such Taxes incurred in determining Net Working Capital connection with this Agreement (the including any real property transfer Tax and any other similar Tax) shall be borne 50% by Buyer and 50% by Sellers. With respect to Taxes described in this proviso being referred to the preceding sentence, Buyer and Sellers shall reasonably cooperate in preparing and filing any such Tax Returns as "Excluded Taxes"). Parent -------------- may be necessary, and the costs of preparing such Tax Returns shall be entitled borne in proportion to any refund the sharing of (or actual credit for when and as actually realized) Taxes for which it is liable under this Section 8.2(a). --------------the related Taxes.
Appears in 1 contract
Liability for Taxes. From and after the Closing Date, CAC and its present or future Affiliates (iother than the Companies) Parent ----------- ------------------- shall be liable for and paydefend, and pursuant to Article XI shall indemnify and hold ---------- Purchaser and its respective present and future Affiliates harmless each Buyer Group Member from and against any and all Losses which any of them may suffer, incur or sustain arising out of or attributable to, or resulting from (i) any breach of any of the representations and Expenses incurred by such Buyer Group Member warranties contained in connection with or arising fromSection 3.13, (ii) any and breach of the covenant contained in Section 5.1(a)(vi), (iii) all Taxes (A) imposed on any Company pursuant to Treas. Reg. (S) 1.1502- 6 the Companies, or similar provision of state or local law solely as a result of such Company having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basis, (B) imposed on or with respect to any Company, for which any Company the Companies may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends on or before the Closing Date (a "Pre-Closing Tax Period") and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing DateDate (including, without limitation, any obligations to contribute to the payment of a Tax determined on a consolidated, combined or unitary basis with respect to any Company Group), other than any transaction of Purchaser or any of its Affiliates not in the ordinary course of business (other than transactions contemplated hereunder) that occurs on the Closing Date but after the Closing, (Civ) arising solely from Taxes of or imposed on the termination, Companies as a result of the Closing Date, of any Company that is a corporation as having been a member of the affiliated a consolidated, combined or unitary group (as defined in Section 1504 of including, without limitation, Taxes for which the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent shall not Companies may be liable for pursuant to Treas. Reg. Section 1.1502-6 or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (I) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of having been a member of a consolidated, combined or unitary group and any Taxes resulting from the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity Companies ceasing to be a member of any Conveyed Companies Subsidiaryconsolidated, combined or that result from Buyerunitary group), and (v) all Section 338 Taxes and all Taxes imposed upon any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by Section 5.2. For purposes of this Agreement Section 6.3, whenever it is necessary to be treated as determine the liability for Taxes of the Companies for a purchase or sale Straddle Period, the determination of assets the Taxes of any Company (other than HEA) the Companies for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed the portion of the Straddle Period ending on any Company, for which any Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on and including the Closing Date after shall be determined by assuming that the ClosingStraddle Period consisted of two taxable years or periods, and (III) any Taxes shown as a liability or reserve on one which ended at the close of the Closing Date Balance Sheet and not excluded as a liability the other which began at the beginning of the day following the Closing Date and such Taxes that are in determining Net Working Capital (the Taxes described in this proviso being referred to as "Excluded Taxes"). Parent -------------- nature of real or personal property taxes shall be entitled to any refund of (apportioned between such two taxable years or actual credit for when and as actually realized) Taxes for which it is liable under this Section 8.2(a). --------------periods on a daily basis.
Appears in 1 contract
Liability for Taxes. (ia) Parent ----------- ------------------- From and after Closing, the Sellers shall jointly and severally be liable for and payfor, and pursuant to Article XI shall indemnify and hold ---------- harmless each Buyer Group Member the Purchaser and its Affiliates from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with attributable to (i) any Taxes of the Companies or arising from, the Subsidiaries for any and Pre-Closing Tax Period or the portion of a Straddle Period ending on the Closing Date; (ii) all Taxes relating to the ownership or operation of the Business or the acquisition, ownership, or sale of any assets primarily related to the Business in any Pre-Closing Tax Period or the portion of a Straddle Period ending on the Closing Date; (Aiii) imposed on any Taxes of Sellers or of any other Person for which any Company or Subsidiary is liable, including pursuant to Treas. Reg. (S) 1.1502- Treasury Regulation Section 1.1502-6 or any similar provision of state state, local or local law solely non-U.S. Law, as a result of such Company having been being a member of a group of corporations joining in filing Tax Returns on a an affiliated, consolidated, joint, unitary, combined or unitary basis, (B) imposed similar group for Tax purposes including Sellers or any Affiliate of any Seller other than the Companies and the Subsidiaries on or with respect prior to any Company, for which any Company may otherwise be liablethe Closing Date, or with respect as a successor or transferee or otherwise as a matter of Law to the HEA Membership Interests extent arising from a transaction or event occurring prior to the Closing; (iv) any payments required to be made by the Companies or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends on or before Subsidiaries following the Closing Date and, with respect pursuant to any Straddle PeriodTax allocation, Tax indemnity, or Tax sharing agreement entered into by any Company or Subsidiary prior to the Closing (other than any such agreements solely among Companies and/or Subsidiaries or any customary agreements entered into in the ordinary course of business that do not primarily relate to Tax matters); and (v) any Taxes arising from or imposed in connection with the transfer, conveyance or assignment of any assets pursuant to Section 5.16 or the termination of the Terminated Affiliate Obligations pursuant to Section 5.9 (clauses (i) through (v), collectively, the “Pre-Closing Tax Indemnity”). Notwithstanding the foregoing, the Purchaser and its Affiliates shall first seek recovery under the Representations and Warranties Insurance Policy before seeking recovery from the Sellers pursuant to the Pre-Closing Tax Indemnity.
(b) Whenever it is necessary for purposes of this Agreement to determine the portion of any Taxes for a Straddle Period which is allocable to the Pre-Closing Tax Period or the Post-Closing Tax Period, (i) any Taxes attributable to the Straddle Period that are based on or related to income, gains, or receipts will be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period based on an interim closing of the books (such Taxes allocable to the Pre-Closing Tax Period being determined as if such taxable period ended as of the end of the Closing Date) (provided that exemptions, allowances or deductions that are calculated on an annual basis (including, but not limited to, depreciation and amortization deductions) shall be allocated between the portion of the Straddle Period ending on the Closing Date, on the one hand, and the portion of the Straddle Period beginning after the Closing Date, on the other hand, in proportion to the number of days in such Straddle Period included in the portion ending on the Closing Date and the number of days in such Straddle Period included in the portion beginning after the Closing) and (ii) any other Taxes will be prorated between the Pre-Closing Tax Period and the Post-Closing Tax Period based upon the number of days in the applicable period ending on and including the Closing Date, (C) arising solely from Date and the termination, as number of days in the portion of the Straddle Period beginning on and including the day after the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (I) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date after the Closing, and (III) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital (the Taxes described in this proviso being referred to as "Excluded Taxes"). Parent -------------- shall be entitled to any refund of (or actual credit for when and as actually realized) Taxes for which it is liable under this Section 8.2(a). --------------.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (American Water Works Company, Inc.)
Liability for Taxes. (i) Parent ----------- ------------------- Seller shall be liable for and for, pay, and pursuant to Article XI shall indemnify and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising fromagainst, (A) any and all Taxes (A) imposed on any the Company or the Subsidiaries pursuant to Treas. Reg. (S) 1.1502- Treasury Regulation Section 1.1502-6 or similar provision of state or local law solely as a result of such the Company or the Subsidiaries having been a member of the Aon or any other consolidated group and any and all Taxes imposed on the Company or the Subsidiaries as a group of corporations joining in filing Tax Returns on a consolidatedtransferee or successor, combined by contract, or unitary basisotherwise, and (B) imposed on any and all Taxes of the Company or with respect to any Companythe Subsidiaries, or for which any the Company or the Subsidiaries may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (C) arising solely from the termination, as of the Closing Date, of including any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) 338 Taxes; provided, however, that -------- ------- Parent Seller shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, against (I) any incremental Taxes (other than any Section 338(h)(10) 338 Taxes) of the Company or any of its Subsidiaries that result from any actual or deemed an election under Section 338 338(a) of the Code or any similar provisions of state, local or foreign law as a result (other than, for the avoidance of doubt, an election under Section 338(h)(10) of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Code) made unilaterally by Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, the Company or the Subsidiaries or for which any the Company or the Subsidiaries may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not engaged in or directed by Buyer after the Closing to the extent such transactions are outside the ordinary course of business occurring on and not otherwise contemplated by this Agreement (the Closing Date after the ClosingTaxes described in clauses I and II hereof being referred to as “Excluded Taxes”), and (III) any Taxes shown as a (excluding, for the avoidance of doubt, any reserve for deferred Taxes established to reflect timing differences between book and Tax income) of the Company or any Subsidiaries to the extent the liability or reserve on for such Taxes are reflected in the Closing Date Balance Sheet and not excluded as a liability in determining calculation of Final Net Working Capital (the Taxes described in this proviso being referred to as "Excluded Taxes")Capital. Parent -------------- Seller shall be entitled to any refund of (or actual credit for when and as actually realizedfor) Taxes allocable to any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date to the extent such refund is not reflected in the calculation of the Final Net Working Capital.
(ii) Buyer shall be liable for, pay, indemnify, and hold harmless each Seller Group Member from and against, (A) any and all Taxes imposed on the Company or the Subsidiaries or for which the Company or the Subsidiaries may otherwise be liable for any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date and (B) Excluded Taxes.
(iii) Whenever it is liable necessary to determine the liability for Taxes of the Company or the Subsidiaries for a Straddle Period under this Section 8.2(aAgreement, the portion of such Taxes that relates to the portion of the Straddle Period ending on and including the Closing Date shall (x) in the case of any Taxes other than Taxes based upon or related to income or receipts, be deemed to be the amount of such Tax for the entire taxable year or period multiplied by a fraction the numerator of which is the number of days in the taxable year or period ending at the close of the Closing Date and the denominator of which is the number of days in the entire taxable year or period, and (y) in the case of any Tax based upon or related to income or receipts, be deemed equal to the amount which would be payable if the relevant taxable year or period ended at the close of the Closing Date. The portion of such Taxes that relates to the portion of the Straddle Period beginning after the Closing Date shall be equal to the actual tax payable for the entire Straddle Period less the portion attributable to the period ending on the Closing Date.
(iv) Any real property or gains Tax (other than any income or similar Taxes). --------------, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement shall be borne one-half by Seller and one-half by Buyer.
Appears in 1 contract
Liability for Taxes. (i) Parent ----------- ------------------- Sellers shall pay or cause to be liable for and paypaid, and pursuant to Article XI shall indemnify each Purchaser Tax Indemnitee and fully protect, save and hold ---------- each Purchaser Tax Indemnitee harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, any and all Taxes the following: (A) any Tax imposed on any Company pursuant to Treas. Reg. (S) 1.1502- 6 upon or similar provision of state or local law solely as a result of such Company having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basis, (B) imposed on or with respect to any Company, for which any Company may otherwise be liable, or with respect relating to the HEA Membership Interests Sellers (other than in respect of the Companies, the AMI Conveyed Properties, the AMI Conveyed Contract, the Alpine Rights-of-Way, the Product Inventory or the SMMSLP LP Interests, in each case described in this clause (BCIPC) for any taxable year period (whether before or period that ends on or before the Closing Date and, with respect to after any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date), (C) arising solely from including any such Tax for which the termination, as Purchaser or a Company may be liable under Section 1.1502-6 of the Closing Date, of any Company that is a corporation as a member of the affiliated group Treasury Regulations (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (I) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions provision of state, local or foreign law law), as a result of the purchase of the Sharestransferee or successor, the HEA Membership Interests by contract or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction otherwise; (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (IIB) any consolidated, combined or unitary Taxes (other than Section 338(h)(10in respect of the Companies, the AMI Conveyed Properties, the AMI Conveyed Contract, the Alpine Rights-of-Way, the Product Inventory or CIPC) Taxes) imposed on of any Company, for group of which any Company may of the Sellers, BP Amoco or any of their respective Affiliates is a member or is the common parent; (C) any consolidated, combined or unitary Taxes imposed upon or relating to any of the Companies, the AMI Conveyed Properties, the AMI Conveyed Contract, the Alpine Rights-of-Way, the Product Inventory or CIPC for any Pre-Closing Period; (D) any Taxes resulting from or arising out of any transaction set forth in Section 2.6 of this Agreement or otherwise be liable contemplated hereunder or with respect to any other transaction undertaken in any Pre-Closing Period by any of the HEA Membership Interests Sellers or the SMMSLP LP Interests as a result Companies or any of actual transactions not in their Affiliates outside of the ordinary course of business occurring on the Closing Date after the Closing, and business; (IIIE) any Taxes shown as a liability imposed upon or reserve on relating to UTP Energy, Unistar or any Subsidiary, entity, Property or asset held directly or indirectly by UTP Holdings prior to the Closing Date Balance Sheet and restructuring set forth in Section 2.6(b)(iv) that will not excluded as a liability in determining Net Working Capital be so held after such restructuring; (the F) any Taxes described in this proviso being referred to as "Excluded Taxes"). Parent -------------- shall be entitled imposed upon or relating to any refund of the Companies, the AMI Conveyed Properties, the AMI Conveyed Contract, the Alpine Rights-of-Way or CIPC for the Pre-Effective Time Period (regardless of when such Taxes are paid) and any Taxes imposed upon or actual credit relating to the Product Inventory for the Pre-Closing Period (regardless of when and as actually realizedsuch Taxes are paid); (G) any Taxes for which it is liable under this resulting from or arising out of any Section 8.2(a338(h). --------------
Appears in 1 contract
Sources: Master Purchase and Sale Agreement (Phillips Petroleum Co)
Liability for Taxes. (ia) Parent ----------- ------------------- Seller shall be liable for and payfor, and pursuant to Article XI shall indemnify and hold ---------- Buyer, the Company, the Subsidiaries and their affiliates harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, (1) any and Taxes caused by or resulting from the sale of the Shares (including, without limitation, all Taxes (Aarising from the Section 338(h)(10) imposed on any Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision of state or local law solely as a result of such Company having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basisElection), (B2) any Taxes imposed on or with respect to incurred by the Company or any Company, for Subsidiary arising out of the inclusion of the Company or any Subsidiary in any Group of which the Company or any Company may otherwise be liable, Subsidiary is or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends was a member on or before the Closing Date and(even if such Taxes relate to income arising after the Closing Date), (3) any Taxes imposed on or incurred by the Company or any Subsidiary (or any Group with respect to the taxable items of the Company or any Straddle PeriodSubsidiary) for any taxable period ending on or before the Closing Date (or the portion, determined as described in paragraph (c) of this Section 9.2, of any such Taxes for any taxable period beginning on or before and ending after the Closing Date which is allocable to the portion of such Straddle Period ending period occurring on and including or before the Closing DateDate (the "Pre-Closing Period")), (C) arising solely from the termination, as of the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (I4) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law payable as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity a breach by Seller of any Conveyed Companies Subsidiaryrepresentation or covenant set forth in Section 2.8 or 4.5, (5) any sales, use, value added, transfer, real property transfer or that result gain, gross receipts, excise, stamp, documentary or similar Taxes arising from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by in this Agreement to and (6) any attorneys' fees or other costs incurred by Buyer, the Company, the Subsidiaries or any affiliate thereof in connection with any payment from Seller under this paragraph (a) of Section 9.2.
(b) Buyer shall be treated as a purchase or sale of assets of any Company (other than HEA) for federalliable for, state or local Tax purposesand shall indemnify and hold Seller and its affiliates harmless from, (II1) any Taxes (other than Section 338(h)(10) Taxes) imposed on or incurred by the Company or any Company, Subsidiary for which Seller is not liable under paragraph (a) of this Section 9.2 and (2) any attorneys' fees or other costs incurred by Seller or any affiliate thereof in connection with any payment from Buyer under this paragraph (b) of Section 9.2.
(c) Whenever it is necessary for purposes of paragraph (a) or (b) of this Section 9.2 to determine the portion of any Taxes imposed on or incurred by the Company may otherwise be liable or with respect to the HEA Membership Interests any Subsidiary (or the SMMSLP LP Interests as any Group) for a result of actual transactions not in the ordinary course of business occurring taxable period beginning on or before and ending after the Closing Date after which is allocable to the ClosingPre- Closing Period, and (III) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital (the Taxes described in this proviso being referred to as "Excluded Taxes"). Parent -------------- determination shall be entitled to made, in the case of property, ad valorem or similar Taxes (which are not measured by, or based upon, production) or franchise or capital Taxes (which are not measured by, or based upon, net income), on a per diem basis, except any refund consequences of (or actual credit for when and as actually realized) Taxes for which it is liable under this the Section 8.2(a338(h). --------------
Appears in 1 contract
Sources: Stock Purchase Agreement (Franklin Electric Co Inc)
Liability for Taxes. (i) Parent ----------- ------------------- Except as provided in Section 6.5(b), Conopco (acting for itself and on behalf of the Sellers) shall be jointly and severally liable for and payfor, and pursuant to Article XI shall indemnify Buyer (acting for themselves and hold ---------- harmless each Buyer Group Member from and against any and on behalf of the other Designated Buyers) against, all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, any and all Taxes (A) Taxes imposed on any Company pursuant of the Sellers or their Affiliates (other than the Companies), save as provided in clause (B) of Section 6.9(a)(ii), including any Taxes arising from the transactions contemplated by Sections 6.3(a) or (b), 7.2, 7.3, 7.4 and 7.5, for any taxable year or period, (B) Taxes imposed on or with respect to Treas. Reg. the Companies, the Assets or the DiverseyLever Business or for which the Companies or the DiverseyLever Business may otherwise be liable, in each case, for any Pre-Closing Tax Period (S) 1.1502- 6 including, in each case, any obligation to contribute to the payment of a Tax determined on a consolidated, combined, unitary, or similar provision basis in respect of state a Pre-Closing Tax Period), (C) without limiting clause (B) hereof in any way, Taxes attributable to any breach of warranty or local law solely misrepresentation relating to Section 4.6 hereof (without regard to any dollar limitation contained therein), (D) Taxes arising as a result of such Company having been any breach of Section 6.9(f) by Conopco, (E) liability of the Companies for Taxes under any Tax Sharing Agreement entered into prior to the Closing Date, (F) liability of the Companies for Taxes arising as a result of ceasing to be a member of a group of corporations joining companies as a result of the Closing, (G) Taxes imposed on any member of the Unilever Group or any of their Affiliates under Article 35 Unilateral Decree 2001 and/or Article ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ or any similar provision of non-Dutch Tax Law, in filing relation to recapture of foreign branch losses of a Pre-Closing Tax Returns on a consolidatedPeriod of any member of the Unilever Group, combined and (H) liability of Buyer or unitary basisits Affiliates for reasonable legal fees and expenses paid to third parties relating to any successful recovery by Buyer or its Affiliates from Conopco (or any Seller) for any item in clauses (A), (B) imposed on or with respect to any Company, for which any Company may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date), (C) arising solely from the termination, as of the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation), (D), (E), (F) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (EG) that are Section 338(h)(10) Taxesabove; provided, however, that -------- ------- Parent Conopco (or the Sellers on whose behalf Conopco is acting) shall not be liable under this Section 6.9(a)(i) for any liability to the extent attributable to or payresulting from (1) a breach by Buyer or any of its Affiliates of any covenant described in Section 6.9(e), (2) any failure by Buyer or any of its Affiliates to comply with its obligations under Section 6.9(c) or to afford Conopco (and the Sellers on whose behalf Conopco is acting) the opportunity to participate (to the extent permitted by Applicable Law) as provided by Section 6.9(c), (3) an increase in Tax rates or a change in Tax legislation, in each case made after the Closing with retroactive effect, (4) a change after Closing in the bases, methods or policies of accounting of the Buyer or any of its Affiliates, (5) a Table of Contents cessation of, or any change in the nature or conduct of, any trade or business carried on by any of the Companies on or after the Closing or (6) an item that has been satisfied or compensated for without cost (including Tax Cost) to Buyer or any of its Affiliates; and provided further, that Conopco (and the Sellers on whose behalf Conopco is acting) shall not be liable under this Section 6.9(a)(i) for any liability to the extent that the liability has been discharged on or before Closing or to the extent that provision has been made for such liability in computing the Final DiverseyLever Closing Working Capital Amount.
(ii) Buyer (acting for themselves and on behalf of Holdings and the other Designated Buyers) shall, subject to Section 6.9(ix), be jointly and severally liable for, and shall not indemnify or hold harmless any Buyer Group Member from Conopco (acting for itself, the Sellers and the Share Subscriber) against, all (IA) Taxes imposed on any incremental member of the CMI Group or any of their Affiliates for any Pre-Closing Tax Period, (B) save for Taxes for which Conopco (and the Seller on whose behalf Conopco is acting) is required to indemnify Buyer and the Designated Buyers pursuant to clauses (B), (C), (D), (E), (F) or (G) of Section 6.9(a)(i), Taxes imposed on Unilever or its Affiliates for which the Companies, the members of the CMI Group (other than Section 338(h)(10) Taxes) that result from the Companies), or the DiverseyLever Business is primarily liable for any actual Post-Closing Tax Period (including, in each case, any obligation to contribute to the payment of a Tax determined on a consolidated, combined, unitary or deemed election under Section 338 similar basis in respect of a Post-Closing Tax Period, but excluding, for the avoidance of doubt, Taxes borne by Unilever or their Affiliates by virtue of their holding of Shares, their indirect ownership interest in the Companies, the members of the Code CMI Group (other than the Companies) or the DiverseyLever Business or their holding of Indebtedness of Holdings or any similar provisions Company), (C) Taxes attributable to any breach of statewarranty or misrepresentation relating to Section 5.6 hereof (without regard to any dollar limitation contained therein), local (D) Taxes arising as a result of any breach of Section 6.9(e) by Buyer, (E) liability of any member of the CMI Group or foreign law any of its Affiliates for Taxes for any Pre-Closing Tax Period under any Tax Sharing Agreement entered into prior to the Closing Date, (F) Taxes imposed on, or with respect to, Conopco or any of its Affiliates arising as a result of the purchase failure of any of the SharesCompanies to discharge a Tax liability in respect of which Conopco (or any of its Affiliates) has made a payment to Buyer pursuant to this Section 6.9, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate (G) liability of Buyer or any Company engaging of its Affiliates (excluding the Companies) for Taxes as a result of ceasing to be a member of a group of companies as a result of the Closing, (H) Taxes imposed on any member of the CMI Group or any of their Affiliates under Article 35 Unilateral Decree 2001 and/or Article ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ or any similar provision of non-Dutch Tax Law, in relation to recapture of foreign branch losses of a Pre-Closing Tax Period of any activity member of the CMI Group, and (I) liability of Conopco or transaction its Affiliates for reasonable legal fees and expenses paid to third parties relating to any successful recovery by Conopco or any of its Affiliates from Buyer (or Holdings or any other Designated Buyer) for any item in clauses (A), (B), (C), (D), (E), (F), (G) or (H) above; provided, however, that Buyer (and Holdings and the other Designated Buyers on whose behalf Buyer is acting) shall not be liable under this Section 6.9(a)(ii) for any liability to the extent attributable to or resulting from (1) a breach by Conopco or any of its Affiliates of any covenant described in Section 6.9(f), (2) any failure by Conopco or any of its Affiliates to comply with its obligations under Section 6.9(c) or to afford Buyer the opportunity to participate (to the extent permitted by Applicable Law) as provided by Section 6.9(c), (3) an increase in Tax Table of Contents rates or a change in Tax legislation, in each case made after the Closing with retroactive effect; or (4) an item that has been satisfied or compensated for without cost (including Tax Cost) to Conopco or any of its Affiliates; and provided further, that Buyer (and Holdings and the other Designated Buyers on whose behalf Buyer is acting) shall not be liable under this Section 6.9(a)(ii) for any liability to the extent that the liability has been discharged on or before Closing.
(iii) For purposes of Sections 6.9(a)(i), 6.9(a)(ii), 6.9(a)(iv), 6.9(a)(v) and 6.9(a)(vi), liability for Taxes and Tax Assets for the portion of the Straddle Period ending on, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consists of two taxable years, one of which ends on the Closing Date and the other of which begins at the beginning of the day immediately following the Closing Date, and items relating to the Companies, the members of the CMI Group (other than the activities Companies), the Assets or the DiverseyLever Business for the Straddle Period shall be allocated between the two taxable years on a “closing of the books basis,” provided, however, that save in respect of clause (F) of Section 6.9(a)(i) and transactions contemplated by this Agreementclause (G) that would cause of Section 6.9(a)(ii), Taxes imposed on a periodic basis with respect to the transactions contemplated by this Agreement to be treated as a purchase or sale Companies, the members of assets of any Company the CMI Group (other than HEA) the Companies), the Assets, or the DiverseyLever Business, and any exemptions, allowances or deductions that are calculated on an annual basis, such as the deduction for federaldepreciation, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed shall be apportioned ratably on any Company, for which any Company may otherwise a daily basis. The foregoing allocations shall be liable determined in a manner consistent with prior practice of or with respect to the HEA Membership Interests relevant Person or asset.
(iv) (A) Buyer (on behalf of the applicable Designated Buyers) shall pay to Conopco (on behalf of the applicable Sellers)
(1) the amount of any refund, abatement or credit of Taxes (in the case of a credit, only as and when a liability of the Buyer or any of its Affiliates to make an actual payment of or in respect of Tax is reduced by reason of that credit) received by Buyer or its Affiliates that is related to the Companies, the Assets or the SMMSLP LP Interests as DiverseyLever Business and is attributable to (I) any Pre-Closing Tax Period or (II) Taxes for which Conopco (on behalf of the applicable Sellers) has previously indemnified Buyer or any Affiliate of Buyer; provided that Buyer (on behalf of the applicable Designated Buyers) shall not be liable to make a result of actual transactions not payment under this Section 6.9(a)(iv)(A)(1) to the extent that the relevant refund has been received, or the relevant abatement or reduction in the ordinary course actual payment of business occurring or in respect of Tax has occurred, on or before Closing, to the extent that the relevant refund, abatement or reduction has been taken into account in computing the Final DiverseyLever Closing Date after Working Capital Amount or to the Closingextent that the relevant refund, abatement, or credit results from the carry back of a Tax Asset attributable to a Post-Closing Tax Period, and (III2) where any provision for Taxes in the DiverseyLever Closing Statement has proved to be an over-provision, the amount of that over-provision. (B) Conopco (on behalf of Share Subscriber) shall pay to Buyer (on behalf of Holdings) one third (or such other portion as is consistent with the principles of Section 11.1(c)(i) (as operated in the manner provided in Section 11.1(c)(iii)) of the amount of any refund, abatement or credit of Taxes (in the case of a credit of Taxes only as and when a liability of Buyer or its Affiliates to make an actual payment of or in respect of Tax is reduced by reason of that credit) received by Buyer or its Affiliates that is related to any member of the CMI Group Table of Contents (other than the Companies) and is attributable to (I) any Pre-Closing Tax Period or (II) Taxes shown for which Buyer (on behalf of Holdings) has previously indemnified Conopco or any Affiliate of Unilever; provided that Conopco (on behalf of Share Subscriber) shall not be liable to make a payment under this Section 6.9(a)(iv)(B) to the extent that the relevant refund has been received, or the relevant abatement or reduction in the actual payment of or in respect of Tax has occurred, on or before Closing, or to the extent that the relevant refund, abatement, or credit results from the carry back of a Tax Asset attributable to a Post-Closing Tax Period. (C) Conopco (on behalf of the applicable Sellers) shall pay to Buyer (on behalf of the applicable Designated Buyers) the amount of any refund, abatement or credit of Taxes (in the case of a credit, only as and when a liability of Conopco or reserve any other member of the Unilever Group to make an actual payment of or in respect of Tax is reduced by reason of that credit) received by Conopco or any other member of the Unilever Group that is related to the Companies, the Assets or the DiverseyLever Business and is attributable to (I) any Post-Closing Tax Period or (II) Taxes for which Buyer (on behalf of the applicable Designated Buyers) has previously indemnified Conopco or any Affiliate of Unilever.
(v) Conopco (on behalf of the applicable Seller) shall pay to Buyer (on behalf of the applicable Designated Buyer) an amount equal to any reduction in the Taxes otherwise chargeable in respect of any Pre-Closing Tax Period of a Company to the extent that (A) such reduction results from the carry back of a Tax Asset attributable to a Post-Closing Tax Period of any member of the CMI Group and (B) the Taxes so saved would have given rise to an indemnification obligation on the part of Conopco of any of its Affiliates under Section 6.9(a)(i) if they had been paid. For the avoidance of doubt no payment shall be required to the extent that any reduction of Taxes otherwise chargeable in respect of any Pre-Closing Date Balance Sheet and not excluded as Tax Period of a liability Company results from the utilisation of a Tax Asset attributable to a Pre-Closing Tax Period of any of the Companies or any member of the Unilever Group.
(vi) Buyer (on behalf of Holdings) shall pay to Conopco (on behalf of Share Subscriber) an amount equal to any reduction in determining Net Working Capital (the Taxes described otherwise chargeable in this proviso being referred respect of any Pre-Closing Tax Period of a member of the CMI Group (other than the Companies) to as "Excluded Taxes"the extent that (A) such reduction results from the carry back of a Tax Asset attributable to a Post-Closing Tax Period of any member of the CMI Group and (B) the Taxes so saved would have given rise to an indemnification obligation on the part of Buyer or any of its Affiliates under Section 6.9(a)(ii) if they had been paid. For the avoidance of doubt no payment shall be required to the extent that any reduction of Taxes otherwise chargeable in respect of any Pre-Closing Tax Period of a member of the CMI Group (other than the Companies) results from the utilisation of a Tax Asset attributable to a Pre-Closing Tax Period of any member of the CMI Group (other than the Companies). Parent -------------- .
(A) Buyer shall be entitled to stamp any refund document that was entered into prior to Closing (1) to which any Company is a party, or (2) which forms part of the title to any asset owned or possessed by any Company at the Closing Date, if, in either case, a stamped original of such document is required to be produced in evidence in a court or to a Governmental Authority by such Governmental Authority, or Table of Contents
(B) If Buyer or any of its Affiliates stamps any document that was entered into prior to Closing (1) to which any member of the CMI Group (other than the Companies) is a party, or (2) which forms part of the title to any asset owned or possessed by any member of the CMI Group (other than the Companies) at the Closing Date, if, in either case, a stamped original of such document is required to be produced in evidence in a court or to a Governmental Authority by such Governmental Authority, or is required to enforce any rights relating to the asset with which the document is concerned, Conopco (acting on behalf of the Share Subscriber) shall be entitled to claim from Buyer (on behalf of Holdings), pursuant to this Agreement, subject to Section 6.9(ix), the amount required to be paid to the relevant Governmental Authority in order to have that document duly stamped.
(A) Conopco shall, and agrees on behalf of each Seller and each of their Affiliates (other than the Companies) that they shall, where relevant, satisfy (by way of an actual credit payment, utilization of any Relief or otherwise) any Taxes referred to in Section 6.9(a)(i)(A) where such Tax is assessed primarily upon Conopco, such Seller or such Affiliate, as the case may be, and where failure to do so would give rise to a claim by Buyer under Section 6.9(a)(i)(A). Conopco and Buyer agree that to the extent Conopco, a Seller or one of their Affiliates satisfies such Taxes, Conopco (acting for when and as actually realizeditself or on behalf of the Sellers) Taxes shall not be liable to indemnify Buyer or any Affiliate of Buyer for which such Taxes. (B) Where, in any provision of this Section 6.9(a), Conopco or a Seller is expressed to be responsible for any Tax or it is liable under this Section 8.2(a). --------------provided that any Tax is to be borne by Conopco or a Seller which Tax is not assessed primarily upon Conopco or its Affiliates and Buyer or any Affiliate of Buyer has paid such Tax to the relevant Governmental Authority, Conopco (for itself or on behalf of the applicable Seller) shall pay to Buyer (for themselves or on behalf o
Appears in 1 contract
Liability for Taxes. (a) the Seller shall be responsible for, pay or cause to be paid, and shall indemnify the Buyer and each of its Subsidiaries and Affiliates (including the Business Subsidiaries after the Closing Date) (each a “Buyer Tax Indemnitee”) and hold each Buyer Tax Indemnitee harmless from and against (i) Parent ----------- ------------------- shall be liable for and pay, and pursuant to Article XI shall indemnify and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, any and all Taxes of the Business Subsidiaries for any Pre-Closing Period, (Aii) imposed on all Taxes of any Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision of state or local law solely as a result of such Company having been a member of a group of corporations joining in filing Tax Returns on a an affiliated, consolidated, combined or unitary basisgroup of which any Business Subsidiary (or any predecessor thereof) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local, or foreign law or regulation, and (Biii) any and all Taxes of any person imposed on a Business Subsidiary as a transferee or with respect successor, by contract or pursuant to any Companylaw, for which any Company may otherwise be liablerule, or with respect regulation, which Taxes relate to the HEA Membership Interests an event or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period that ends transaction occurring on or before the Closing Date and(other than (w) all Transfer Taxes for which the Buyer is responsible pursuant to Section 7.08, (y) any such Taxes reflected in the Initial Working Capital Statement or Final Working Capital Statement and (z) any such Taxes arising from or in connection with respect any breach by the Buyer or any of its Affiliates of any covenant contained in this Agreement (such Taxes described in (y) and (z), herein are referred to as “Excluded Taxes”).
(b) The Buyer shall, except to the extent that such Taxes are the responsibility of the Seller under Section 7.01(a), be responsible for, pay or cause to be paid, and shall indemnify the Seller and its Subsidiaries and Affiliates (other than the Business Subsidiaries) (each a “Seller Tax Indemnitee”) and hold each Seller Tax Indemnitee harmless from and against all Transfer Taxes for which the Buyer is responsible pursuant to Section 7.08.
(c) For all purposes of this Agreement, in determining the Taxes attributable to the Pre-Closing Period included in any Straddle Period and in determining Taxes in the Initial Working Capital Statement and the Final Working Capital Statement, (i) Property Taxes shall be equal to the amount of such Property Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of calendar days during the Straddle Period that are in the Pre-Closing Period and the denominator of which is the number of calendar days in the entire Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (Cii) arising solely from the termination, as of the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (I) any incremental Taxes (other than Section 338(h)(10) Property Taxes) that result from any actual or deemed election under Section 338 shall be computed as if such taxable period ended as of the Code end of the day on the Closing Date using a closing of the books method and (iii) notwithstanding Sections 7.01(c)(i) and (ii), any Taxes attributable to any election made by Buyer pursuant to Section 7.15 of this Agreement or any similar provisions action taken by Buyer out of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date after the Closing, and (III) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital (the Taxes described in this proviso being referred to as "Excluded Taxes"). Parent -------------- shall be entitled allocated to any refund of (or actual credit for when the Post-Closing Period and as actually realized) Taxes for which it is liable under are not contemplated by this Section 8.2(a). --------------Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement (Synchronoss Technologies Inc)
Liability for Taxes. (ia) Parent ----------- ------------------- and the Seller shall be liable for and pay, and shall indemnify, defend, and hold harmless the Acquiror Indemnified Parties from and against, and reimburse any Acquiror Indemnified Party for, any Losses with respect to (i) Taxes imposed on the Company or any Transferred Subsidiary pursuant to Article XI shall indemnify and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, any and all Taxes (A) imposed on any Company pursuant to Treas. Reg. (S) 1.1502- Treasury Regulation Section 1.1502-6 or similar provision of state state, local or local law solely foreign Law as a result of such Company having been a member of a group of corporations joining in filing Tax Returns on a consolidatedcombined, combined consolidated or unitary basisbasis with Parent or the Seller or any of their Affiliates prior to the Closing, (Bii) Taxes imposed by reason of the Company or any Transferred Subsidiary having liability for Taxes of another Person arising under principles of transferee or successor liability or by contract (other than contracts which (a) are ordinary course commercial agreements and (b) the primary subject matter of which is not Taxes), as a result of activities or transactions taking place at or prior to the Closing, (iii) Taxes imposed on the Company or with respect to any CompanyTransferred Subsidiary, or for which the Company or any Company Transferred Subsidiary may otherwise be liable, liable or Taxes with respect to the HEA Membership Interests or the SMMSLP LP InterestsBusiness, in each case described in this clause (B) for any taxable year or period that ends on or before the Pre-Closing Date Taxable Periods and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (Civ) arising solely Taxes that arise from the termination, as of the Closing Date, or are attributable to any inaccuracy in or breach of any Company that is a corporation as a member of the affiliated group (as defined representation or warranty made in Section 1504 of the Code) of which Parent is the parent corporation3.21(e), (Df) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (Eh) that are or to any breach of any Tax covenant under this Agreement, and (v) Section 338(h)(10) 338 Taxes; provided, however, that -------- ------- Parent and the Seller shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member the Acquiror from and against, (IA) any incremental Taxes (other than any Section 338(h)(10) 338 Taxes) that result from any actual or election (other than the Section 338(h)(10) Elections, and any elections deemed election made as a result of the Section 338(h)(10) Elections) under Section 338 of the Code or any similar provisions of state, local or foreign law Law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, Shares or the deemed purchase of shares or equity the Capital Stock of any Conveyed Companies Subsidiary, Transferred Subsidiary or that result from Buyerthe Acquiror, any Affiliate of Buyer the Acquiror, the Company or any Company Transferred Subsidiary engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) Transferred Subsidiary for federal, state state, local or local other Tax purposes, (IIB) any Taxes (other than Section 338(h)(10) Taxes) imposed on the Company or any Company, Transferred Subsidiary or for which the Company or any Company Transferred Subsidiary may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date after the Closing, and (IIIC) any Taxes shown as for which the Acquiror is liable under Section 7.01(b), and (D) any Taxes taken into account in the calculation of the Final Working Capital.
(b) The Acquiror shall be liable for and pay, and shall indemnify, defend, and hold harmless the Seller Indemnified Parties from and against, and reimburse the Seller Indemnified Party for any Taxes imposed on the Company or any Transferred Subsidiary, or for which the Company or any Transferred Subsidiary may otherwise be liable, that are not subject to indemnification pursuant to Section 7.01(a).
(c) For purposes of Sections 7.01(a) and 7.01(b), whenever it is necessary to determine the liability for Taxes of the Company or a liability Transferred Subsidiary for a Straddle Period, the determination of the Taxes of the Company or reserve such Transferred Subsidiary for the portion of the Straddle Period ending on and including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two (2) taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date, and items of income, gain, deduction, loss or credit of the Company or such Transferred Subsidiary for the Straddle Period shall be allocated between such two (2) taxable years or periods on a “closing of the books basis” by assuming that the books of the Company or such Transferred Subsidiary were closed at the close of the Closing Date, provided, however, that (I) transactions occurring on the Closing Date Balance Sheet that are properly allocable (based on, among other relevant factors, factors set forth in Treasury Regulation Section 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing shall be allocated to the taxable year or period that is deemed to begin at the beginning of the day following the Closing Date, and (II) in the case of Taxes imposed on a periodic basis (e.g., property Taxes) and exemptions, allowances or deductions that are calculated on an annual basis, such as the deduction for depreciation, shall be apportioned between such two (2) taxable years or periods on a daily basis. For purposes of Section 7.01(d), where it is necessary to apportion any refund or credit between Parent or the Seller and the Acquiror for a Straddle Period, such refund or credit shall be apportioned in the same manner that Tax liabilities are apportioned pursuant to this Section 7.01(c). Notwithstanding the foregoing provisions of this Section 7.01(c), if the transactions contemplated by this Agreement result in the reassessment of the value of any property owned by the Company or any Subsidiary for property Tax purposes, or the imposition of any property Taxes at a rate which is different than the rate that would have been imposed if such transactions had not excluded as occurred, then (y) the portion of such property Taxes for the portion of the Straddle Period ending on and including the Closing Date shall be determined on a liability daily basis, using the assessed value and Tax rate that would have applied had such transactions not occurred, and (z) the portion of such property Taxes for the portion of such Straddle Period beginning after the Closing Date shall be the total property Taxes for the Straddle Period minus the amount described in determining Net clause (y) of this sentence.
(d) All refunds of Taxes (including interest actually received thereon from a relevant Tax Authority) for which Parent and Seller are responsible pursuant to Section 7.01(a) (other than (i) to the extent such refund results from the carryback of a Tax attribute of the Company or any Transferred Subsidiary relating to a Post-Closing Taxable Period or (ii) any such refunds reflected on the Final Working Capital Statement) shall be for the account of Seller, and Acquiror shall pay such amounts (less Acquiror’s out-of-pocket expenses incurred in connection with obtaining such refund and less any Taxes incurred by Acquiror, its Affiliates, the Taxes described Company or any Transferred Subsidiary in this proviso being referred connection with the receipt of such refund or interest) within thirty (30) days to as "Excluded Taxes")Seller if such refunds are received by Acquiror, the Company or any Transferred Subsidiary. Parent -------------- Acquiror shall be entitled to all other refunds of Taxes (including interest received thereon from a relevant Tax Authority) in respect of any Taxes of the Company or any Transferred Subsidiary (including to the extent such refund results from the carryback of a Tax attribute of the Company or any Transferred Subsidiary relating to a Post-Closing Taxable Period), and Seller shall pay such amounts (less Seller’s out-of-pocket costs incurred in connection with obtaining such refund and less any Taxes incurred by Seller, Parent or actual credit for when its Affiliates in connection with the receipt of such refund or interest) within thirty (30) days to Acquiror if such amounts are received by Seller, Parent or any Affiliate thereof.
(e) Notwithstanding anything herein to the contrary, the Acquiror shall pay, and as actually realized) shall indemnify the Seller against, any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement. The Acquiror shall prepare and timely file all Tax Returns required to be filed in respect of any Taxes for which it is liable under pursuant to this Section 8.2(a7.01(e) (including any and all notices required to be given with respect to bulk sales taxes). --------------.
Appears in 1 contract
Sources: Master Transaction Agreement (National General Holdings Corp.)
Liability for Taxes. (a) From and after Closing, Sellers shall, jointly and severally, be liable for, indemnify, and hold harmless Purchaser and the Company Parties and their respective Affiliates from and against (together with all reasonable fees, expenses and costs relating thereto), (i) Parent ----------- ------------------- shall be any Income Taxes imposed by any applicable Laws on any Seller, any of its direct or indirect owners or Affiliates (other than a Company Party), or any combined, unitary, or consolidated group of which any of the foregoing is or was a member for any taxable period (or portion thereof) whether before or after Closing, (ii) any Taxes imposed on, relating to, or incurred by any Company Party attributable to a Pre-Closing Period, (iii) any Taxes of any Consolidated Group (or any member thereof, other than a Company Party) of which any Company Party (or any predecessor thereof) is or was a member on or prior to the Closing Date by reason of Treasury Regulation § 1.1502-6(a) or any analogous or similar foreign, state or local Law, (iv) any Taxes of any other Person for which any Company Party is or has been liable as a transferee or successor, by contract or otherwise, to the extent such Taxes arise out of events, transactions or relationships occurring or existing prior to the Closing, (v) any Taxes imposed on or with respect to the ownership or operation of the Excluded Assets for and payany taxable period (or portion thereof) whether before or after Closing, and (vi) any Taxes resulting from a breach of any of the representations and warranties set forth in Section 3.7 or in the certificate delivered at Closing pursuant to Section 8.2(c) (determined without regard, in each case, to any materiality or knowledge qualifiers) or a breach by Sellers of any of the covenants set forth in Article XI 9 (collectively, “Seller Taxes”); provided that no such Tax will constitute a Seller Tax (x) to the extent such Tax was included as a current liability in the final determination of the Effective Time Net Working Capital or (y) to the extent arising from any transaction or action of a Company Party occurring on the Closing Date and after the Closing that occurs outside the ordinary course of business. Notwithstanding anything in this Agreement to the contrary, Seller Taxes shall indemnify and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, include any and all Taxes (Ax) imposed on arising out of or in connection with any Company pursuant transaction or action relating to Treas. Reg. any of the ▇▇▇-STACK Purchase Agreement or the TOMPC Purchase Agreement (S) 1.1502- 6 or similar provision of state or local law solely as a result of such Company having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basisand the transactions contemplated thereby), (By) imposed on or with respect to the Sooner Entities (including any Company, for which any Company may otherwise be liableTaxes resulting from a distribution of, or other transaction involving, the Sooner Entities), or (z) incurred in connection with or relating to any transaction or action described in Section 9.11.
(b) For purposes of Section 9.1(a)(ii): (i) any Taxes attributable to a Straddle Period that are based on or related to income, gains or receipts will be allocated between the Pre-Closing Period and the Post-Closing Period based on an interim closing of the books (such Taxes allocable to the Pre-Closing Period being determined as if such Straddle Period ended as of the end of the day on the Closing Date); (ii) any ad valorem, property or similar Taxes that are imposed on a periodic basis with respect to the HEA Membership Interests or assets of any Company Party for a Straddle Period will be allocated between the SMMSLP LP Interests, Pre-Closing Period and the Post-Closing Period based upon the number of days in each case described in this clause (B) for any taxable year or period that ends the applicable Straddle Period falling on or before the Closing Date andDate, with respect to any Straddle Periodon the one hand, the portion of such Straddle Period ending on and including after the Closing Date, on the other hand; (Ciii) arising solely from any sales, use and other similar Taxes imposed on a transactional basis (for the terminationavoidance of doubt, as not including Taxes described in clause (i)), shall be allocated to the period in which the transaction giving rise to such Taxes occurred, except for Transfer Taxes provided in Section 12.3; and (iv) any severance, production and similar Taxes based upon or measured by the quantity of or the value of the Closing Date, production of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating Hydrocarbons shall be allocated to the Excluded Assets or taxable period in which the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (I) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of relevant production occurred. Notwithstanding anything to the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyercontrary herein, any Affiliate of Buyer franchise Tax paid or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or payable with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date after the Closing, and (III) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital (the Taxes described in this proviso being referred to as "Excluded Taxes"). Parent -------------- each Company Party shall be entitled allocated to any refund the taxable period during which the income, operations, assets or capital comprising the base of (or actual credit such Tax is measured, regardless of whether the right to do business for when and as actually realized) Taxes for which it another taxable period is liable under this Section 8.2(a). --------------obtained by the payment of such franchise Tax.
Appears in 1 contract
Sources: Purchase and Sale Agreement (EnCap Energy Capital Fund X, L.P.)
Liability for Taxes. (i) Parent ----------- ------------------- The Sellers shall be liable for and shall pay, and pursuant to the terms of Article XI shall indemnify and hold ---------- harmless each Buyer Group Member from including, without limitation, each Company and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising fromSubsidiary, any and against, (x) all Taxes of the Companies and the Subsidiaries attributable to taxable years or periods ending on or prior to the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, including, without limitation, all Tax liabilities triggered by the consummation of the transactions contemplated herein under the intercompany transaction or excess loss account provisions of the Federal consolidated return regulations (A) imposed on any Company pursuant to Treas. Reg. (S) 1.1502- 6 or similar provision comparable provisions of state or local law or regulation) and (y) all Taxes imposed on any Company or Subsidiary under Reg. Section 1.1502-6 of the Federal consolidated return regulations (or comparable provisions of state or local law or regulation) solely as a result of such Company or Subsidiary having been a member prior to the Closing Date of a Seller Tax Group or of another group of corporations joining in (other than a group consisting solely of one or more Companies or Subsidiaries) filing Tax Returns on a consolidated, combined or unitary basis; provided, however, that the Sellers shall not be liable for or pay and shall not indemnify any Buyer Group Member or any Company or Subsidiary for, (A) any Taxes up to the amount of Taxes that are reflected in Closing Net Working Capital, (B) any Taxes that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state or foreign law relating to the purchase of the Shares, or that result from Buyer, any Affiliate of Buyer, the Companies or any of the Subsidiaries engaging in any activity or transaction that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company or any of the Subsidiaries for federal, state or local Tax purposes, and (C) any Taxes imposed on the Companies or with respect any Subsidiary (other than by application of the provisions of law or regulation referred to any Companypreviously in this Section 8.2(a)) as a result of transactions occurring on the Closing Date that are properly allocable (based on, for which any Company may otherwise be liableamong other relevant factors, or with respect factors set forth in Treas. Reg. Section 1.1502-76(b)(1)(ii)(B)) to periods after the HEA Membership Interests or the SMMSLP LP Interests, in each case Closing Date (Taxes described in this clause proviso, hereinafter "Excluded Taxes"). The Sellers shall be entitled to any refund of (Bor credit for) for Taxes allocable to any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, .
(Cii) arising solely from the termination, as of the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent Buyer shall not be liable for or and shall pay, and pursuant to the terms of Article XI shall not indemnify or and hold harmless any Buyer each Seller Group Member from and against, (IA) any incremental all Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code Companies and the Subsidiaries attributable to taxable years or any similar provisions of stateperiods beginning after the Closing Date and, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to any Straddle Period, the HEA Membership Interests or the SMMSLP LP Interests as a result portion of actual transactions not in the ordinary course of business occurring on such Straddle Period beginning immediately after the Closing Date after the Closing, and (III) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and not excluded as a liability in determining Net Working Capital (the Taxes described in this proviso being referred to as "Excluded Taxes"B). Parent -------------- shall be entitled to any refund of (or actual credit for when and as actually realized) Taxes for which it is liable under this Section 8.2(a). --------------
Appears in 1 contract
Sources: Stock Purchase Agreement (Healthcare Compare Corp/De/)
Liability for Taxes. (a) RRD shall be liable for, and indemnify each Company Group Member against, all (i) Parent ----------- ------------------- shall be liable for and pay, and pursuant to Article XI shall indemnify and hold ---------- harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from, any and all Taxes (A) imposed on the Company or any Company Subsidiary solely as a result of being a member of a Combined Group pursuant to Treas. Reg. (S) 1.1502- 1.1502-6 or similar provision provisions of state or and local law solely as a result of such Company having been a member of a group of corporations joining in filing Tax Returns on a consolidated, combined or unitary basis, and (Bii) Taxes imposed on the Company or with respect to any CompanySubsidiary, or for which the Company or any Company Subsidiary may otherwise be liable, or with respect to the HEA Membership Interests or the SMMSLP LP Interests, in each case described in this clause (B) for any taxable year or period (or portion thereof) that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (C) arising solely from the termination, as of the Closing Date, of any Company that is a corporation as a member of the affiliated group (as defined in Section 1504 of the Code) of which Parent is the parent corporation, (D) arising from the distribution of or otherwise relating to the Excluded Assets or the Excluded Business or (E) that are Section 338(h)(10) Taxes; provided, however, that -------- ------- Parent RRD shall not be liable for or payfor, and shall not indemnify or hold harmless any Buyer Company Group Member from and against, (I) any incremental Taxes (other than Section 338(h)(10) Taxes) that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares, the HEA Membership Interests or the SMMSLP LP Interests, or the deemed purchase of shares or equity of any Conveyed Companies Subsidiary, or that result from Buyer, any Affiliate of Buyer or any Company engaging in any activity or transaction (other than the activities and transactions contemplated by this Agreement) that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company (other than HEA) for federal, state or local Tax purposes, (II) any Taxes (other than Section 338(h)(10) Taxes) imposed on any Company, for which any Company may otherwise be liable or with respect to the HEA Membership Interests or the SMMSLP LP Interests as a result of actual transactions not in the ordinary course of business occurring on the Closing Date after the Closing, and (IIIA) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and (B) up to $100,000 of Taxes described in clause (ii) of this Section 2(a) that are not excluded shown as a liability in determining Net Working Capital or reserve on the Balance Sheet (the Taxes described in this proviso being referred to as proviso, "Excluded Taxes"). Parent -------------- Except to the extent shown as an asset on the balance sheet, RRD shall be entitled to any refund of (or actual credit for) Taxes attributable to RRD or any of its Affiliates (including the Company and each of the Subsidiaries) allocable to any taxable year or period (or portion thereof) that ends on or before the Closing Date, and the Company agrees to remit any such refund paid to it to RRD.
(b) The Company shall be liable for, and indemnify each RRD Group Member against, all Taxes imposed on the Company or any Subsidiary, or for when which the Company or any Subsidiary may otherwise be liable (including, without limitation, Excluded Taxes); provided, however, that the Company shall not be liable for, and as actually realized) shall not indemnify any RRD Group Member against, any Taxes for which RRD is expressly liable pursuant to Section 2(a) of this Agreement. Except as provided in Section 2(a) or 2(d) of this Agreement, the Company shall be entitled to any refund of (or credit for) Taxes attributable to the Company or any Subsidiary for any taxable year or period (or portion thereof).
(c) For purposes of Sections 2(a) and 2(b) of this Agreement, the allocation of Taxes of a Combined Group to the Company and the Subsidiaries for the taxable year or period (or portion thereof) ending on the Closing Date shall be determined consistent with RRD's current tax sharing arrangement. Further, whenever it is necessary to determine the liability for Taxes of the Company or any Subsidiary for a partial taxable year or period (including a partial period ending on the Closing Date), the determination of the Taxes of the Company or such Subsidiary for the portion of such period shall be determined on a "closing of the books basis" by assuming that the books of the Company or such Subsidiary were closed at the close of such period, except that Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on a daily basis and deductions (such as depreciation) allowable on a periodic basis shall be allocated on a daily basis.
(d) Notwithstanding Section 2(a) of this Agreement, if, as a result of any action, suit, investigation, audit, claim, assessment or amended Tax Return, there is any change after the Closing Date in an item of income, gain, loss, deduction, credit or amount of Tax that results in an increase in a Tax liability for which RRD would otherwise be liable under this pursuant to Section 8.2(a2(a), and such change results in a potential decrease (the "Decrease Amount") in the Tax liability of the Company, any Subsidiary or any Affiliate thereof for any taxable year or period (or portion thereof) beginning after the Closing Date, then RRD shall be entitled to the full amount of such Decrease Amount (whether through (i) a retention by RRD of any Tax refund, reduction in Taxes, Tax credit, or other benefit equal to such Decrease Amount; (ii) a payment by the Company of an amount equal to the Decrease Amount; (iii) an offset by RRD of amounts otherwise payable by RRD to the Company; (iv) a combination of the foregoing; or (v) other means). --------------The Decrease Amount shall be determined by assuming that (i) the Company, any Subsidiary or any Affiliate thereof is subject to Tax at the highest marginal rate in effect for all affected taxing jurisdictions at the time the Decrease Amount is determined, and (ii) the potential decrease in Tax liability will be recognized by the Company, any Subsidiary or any Affiliate thereof immediately.
(e) The Company shall pay, and shall indemnify RRD against, any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Tax Allocation and Indemnification Agreement (Donnelley Enterprise Solutions Inc)