Common use of Post-Closing Tax Actions Clause in Contracts

Post-Closing Tax Actions. Following the Closing and until the Merger Consideration is finally determined under Article II, Parent and its Affiliates (including the Company and its Subsidiaries after the Closing) shall not (i) file (unless the original due date for such Tax Return is after the Closing Date) or amend any Tax Return of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (ii) extend or waive the applicable statute of limitations with respect to a Tax of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (iii) file any ruling or request with any taxing authority that relates to Taxes or Tax Returns of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (iv) change any current practice or procedure or accounting method, in each case with respect to Taxes, of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (v) make, change or revoke any Tax election (including an election under Section 336 or 338 of the Code or any similar provision of foreign, state or local law) that relates to, or is retroactive to, a taxable period or portion thereof ending on or prior to the Closing Date, or (vi) enter into any voluntary disclosure with any taxing authority regarding any Tax or Tax Returns of the Company or any of its Subsidiaries (collectively, “Post-Closing Tax Actions”), in each case, without the prior written consent of the Representative (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the Parties acknowledge and agree that the sole remedy for noncompliance with or breach of this Section 6.10(d) shall be that any Post-Closing Tax Action shall be ignored when determining the final Merger Consideration under Article II.

Post-Closing Tax Actions. Following After the Closing Closing, Buyer shall not, and until the Merger Consideration is finally determined under Article II, Parent and Buyer shall cause its Affiliates (including the Company and its Subsidiaries after the ClosingAcquired Companies) shall not (i) file (unless the original due date for such Tax Return is after the Closing Date) or amend any Tax Return of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (ii) extend or waive the applicable statute of limitations with respect to a Tax of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (iii) file any ruling or request with any taxing authority that relates to Taxes or Tax Returns of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (iv) change any current practice or procedure or accounting method, in each case with respect to Taxes, of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (v) make, change or revoke any Tax election (including an election under Section 336 or 338 of the Code or any similar provision of foreign, state or local law) that relates to, or is retroactive to, a taxable period or portion thereof ending on or prior to the Closing Date, or (vi) enter into any voluntary disclosure with any taxing authority regarding any Tax or Tax Returns of the Company or any of its Subsidiaries (collectively, “Post-Closing Tax Actions”), in each case, without the prior written consent of the Equityholders' Representative (not to be unreasonably withheld, conditioned or delayed), (i) other than Tax Returns that are filed pursuant to this Section 6.6, file or amend or otherwise modify any Tax Return for a Pre-Closing Tax Period, (ii) after the date any Tax Return filed pursuant to this Section 6.6 is filed, amend or otherwise modify any such Tax Return, (iii) extend or waive, or cause to be extended or waived, any statute of limitations or other period for the assessment of any Tax or deficiency for a Pre-Closing Tax Period other than in connection with a Tax Contest, (iv) make or change any Tax election or accounting method or practice with respect to, or that has retroactive effect to, any Pre-Closing Tax Period, or (v) make or initiate any voluntary contact with a Tax authority (including any voluntary disclosure agreement or similar process) regarding any Pre-Closing Tax Period. Notwithstanding the foregoingpreceding sentence, if Buyer believes that applicable Legal Requirement affirmatively requires Buyer or the Acquired Companies to take an action described in clauses (i) through (v) of the preceding sentence (including any requirement due to the settlement or compromise of any audit or other proceeding with respect to Taxes or Tax Returns of the Acquired Companies), Buyer shall deliver written notice of such belief and the legal basis for determining that such action (the "Proposed Action") is so affirmatively required to the Equiyholders' Representative and the Equityholders' Representative shall have twenty days to notify Buyer if it agrees or disagrees with such conclusion and the legal basis therefor; provided that if the Equityholders' Representative does not agree with Buyer's conclusion, then such disagreement shall be promptly submitted to, and resolved by, the Parties acknowledge Accounting Firm, who shall apply a "more likely than not" standard (with the fees and agree that expenses of the sole remedy for noncompliance Accounting Firm borne by Buyer unless the Accounting Firm agrees with or breach of this Section 6.10(d) Buyer's position, in which case such fees and expenses shall be borne by the Equityholders' Representative); provided further, that if the Accounting Firm determines that applicable Legal Requirement affirmatively requires any Post-Closing Tax action described in clauses (i) through (v) to be taken, then Buyer shall have the right to take such action subject to the Equityholders' Representative's right to review and approve the manner in which such action is taken (which approval shall not be unreasonably withheld, conditioned, or delayed). In the event the Equityholders' Representative agrees to the Proposed Action or does not provide written notice of its disagreement to the Proposed Action within twenty days of receipt of notice thereof, then Buyer shall be ignored when determining the final Merger Consideration under Article IIentitled to take such Proposed Action.

Post-Closing Tax Actions. Following the Closing and until the Merger Consideration is finally determined under Article II, Parent and its Affiliates (including the Company and its Subsidiaries after the Closing) shall not (i) file (unless the original due date for such Tax Return is after the Closing Date) or amend any Tax Return of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (ii) extend or waive the applicable statute of limitations with respect to a Tax of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (iii) file any ruling or request with any taxing authority that relates to Taxes or Tax Returns of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (iv) change any current practice or procedure or accounting method, in each case with respect to Taxes, of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (v) make, change or revoke any Tax election (including an election under Section 336 or 338 of the Code or any similar provision of foreign, state or local law) that relates to, or is retroactive to, a taxable period or portion thereof ending on or prior to the Closing Date, or (vi) enter into any voluntary disclosure with any taxing authority regarding any Tax or Tax Returns of the Company or any of its Subsidiaries (collectively, “Post-Closing Tax Actions”), in each case, without the prior written consent of the Representative Sellers’ Agent, Buyer and the Targets will not (and will not permit their respective Affiliates, including the Targets’ Subsidiaries, to) (i) except for Tax Returns filed pursuant to this Section, file or amend any Tax Returns of the Targets or their Subsidiaries with respect to any Pre-Closing Tax Period, (ii) with respect to Tax Returns prepared and filed pursuant to this Section, after the date such Tax Returns are filed, amend any such Tax Returns, (iii) make or change any Tax election or change any method of accounting that has a retroactive effect to any Tax Return of the Targets or any of their Subsidiaries for a Pre-Closing Tax Period, or (iv) voluntarily approach any Tax authority regarding any Tax or Tax Return of the Targets or any of their Subsidiaries for a Pre-Closing Tax Period (each, a “Prohibited Tax Action”), if in each case such Prohibited Tax Action increases the Sellers’ Tax liability in a Pre-Closing Tax Period or could reasonably be unreasonably withheld, conditioned or delayed)expected to form the basis for a claim of indemnification against the Sellers pursuant to this Agreement. Notwithstanding the foregoing, if Buyer, on advice of its Tax advisors, reasonably believes that a Prohibited Tax Action is required by Applicable Law, then, with twenty (20) days’ advance notice to the Sellers’ Agent, Buyer shall be permitted to take such Prohibited Tax Action; provided that if Sellers’ Agent, on advice of its Tax advisors, objects in writing to the taking of such Prohibited Tax Action within such twenty (20) day period, the Parties acknowledge shall refer the matter for resolution to an independent tax advisory firm mutually selected by the Buyer and the Sellers’ Agent; provided that if the Buyer and the Sellers’ Agent are unable to agree that on an independent tax advisory firm within five (5) days following Sellers’ Agent’s objection notice, each shall, within two (2) days thereafter, select its own tax advisory firm, which together shall select an independent tax advisory firm to resolve the sole remedy for noncompliance with or breach matter. The cost of this Section 6.10(d) the independent tax advisory firm shall be that any Post-Closing Tax Action shall be ignored when determining the final Merger Consideration under Article IIborne equally by Buyer and Sellers.

Post-Closing Tax Actions. Following the Closing and until the Merger Consideration is finally determined under Article II, Parent and its Affiliates (including the Company and its Subsidiaries after the Closing) shall not (i) file (unless the original due date for such Tax Return is after the Closing Date) or amend any Tax Return of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (ii) extend or waive the applicable statute of limitations with respect to a Tax of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (iii) file any ruling or request with any taxing authority that relates to Taxes or Tax Returns of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (iv) change any current practice or procedure or accounting method, in each case with respect to Taxes, of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (v) make, change or revoke any Tax election (including an election under Section 336 or 338 of the Code or any similar provision of foreign, state or local law) that relates to, or is retroactive to, a taxable period or portion thereof ending on or prior to the Closing Date, or (vi) enter into any voluntary disclosure with any taxing authority regarding any Tax or Tax Returns of the Company or any of its Subsidiaries (collectively, “Post-Closing Tax Actions”), in each case, without Without the prior written consent of the Unit Holder Representative (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, Coty, the Parties acknowledge Company, the Company’s Subsidiaries, and agree that their respective Affiliates will not refile or amend or permit the sole remedy for noncompliance with Company or breach of this Section 6.10(d) shall be that its Subsidiaries to refile or amend any PostPre-Closing Tax Action shall Return or Straddle Tax Return. After the date of this Agreement, none of Coty, the Company, or the Company’s Subsidiaries shall, without the written consent of the Unit Holder Representative (not to be ignored when determining unreasonably withheld, conditioned or delayed), (a) agree to waive or extend the final Merger Consideration under Article IIstatute of limitations relating to any Taxes of the Company or any of its Subsidiaries for a Pre-Closing Tax Period or the portion of a Straddle Period ending on or prior to the Closing Date, (b) make or change any Tax position, accounting method, or election with respect to, or that has retroactive effect to, any Pre-Closing Tax Period or the portion of a Straddle Period ending on or prior to the Closing Date of the Company or any of its Subsidiaries, or (c) voluntarily approach any taxing authority (or otherwise file Tax Returns where the Company and its Subsidiaries have not historically filed Tax Returns) with respect to any Pre-Closing Tax Period or the portion of a Straddle Period ending on or prior to the Closing Date of the Company or any of its Subsidiaries or the Taxes of the Company or any of its Subsidiaries attributable to a Pre-Closing Tax Period or the portion of a Straddle Period ending on or prior to the Closing Date.

Post-Closing Tax Actions. Following the Closing Parent shall not, and until the Merger Consideration is finally determined under Article II, Parent and its Affiliates (including the Company and its Subsidiaries after the Closing) shall not cause or permit the Company, the Surviving LLC, the Surviving Corporation or their Affiliates or Subsidiaries to (i) file make or change any Tax election under Sections 336 or 338 of the Code with respect to the transactions contemplated by this Agreement or that otherwise has any retroactive effect on any Pre-Closing Tax Period, (unless ii) enter into any voluntary disclosure program or agreement with any Tax Authority regarding any Taxes or Tax Returns of the original due date for such Company, the Surviving LLC or the Surviving Corporation or any of their Subsidiaries with respect to any Pre-Closing Tax Return is after the Closing DatePeriod, (iii) amend, refile or amend modify or cause to be amended, refiled or modified any Tax Return of the Company or any of its Subsidiaries for any Pre-Closing Tax Period, (iv) file a Tax Return for a Pre-Closing Tax Period in a jurisdiction where the Company, the Surviving LLC, the Surviving Corporation or any of their Subsidiaries did not file such Tax Return for such period, (v) initiate discussions or examinations with any Tax Authority regarding Taxes of the Company, the Surviving LLC, the Surviving Corporation or any of their Subsidiaries with respect to any Pre-Closing Tax Period, or (vi) change any accounting method or adopt any convention that shifts taxable income of the Company, the Surviving Corporation, the Surviving LLC or any of their Subsidiaries from a period beginning (or deemed to begin) after the Closing Date to a taxable period or portion thereof ending on or prior to the Closing Date, (ii) extend Date or waive the applicable statute of limitations with respect to a Tax shifts deductions or losses of the Company Company, the Surviving LLC, the Surviving Corporation or any of its their Subsidiaries for from a taxable period (or portion thereof thereof) ending on or prior to the Closing Date, Date to a period (iii) file any ruling or request with any taxing authority that relates to Taxes or Tax Returns of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on thereof) beginning (or prior deemed to begin) after the Closing Date, (iv) change any current practice or procedure or accounting method, in each case with respect to Taxes, of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (v) make, change or revoke any Tax election (including an election under Section 336 or 338 of the Code or any similar provision of foreign, state or local law) that relates to, or is retroactive to, a taxable period or portion thereof ending on or prior to the Closing Date, or (vi) enter into any voluntary disclosure with any taxing authority regarding any Tax or Tax Returns of the Company or any of its Subsidiaries (collectively, “Post-Closing Tax Actions”), in each case, without the prior written consent of the Shareholder Representative (which consent shall not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the Parties acknowledge and agree that the sole remedy for noncompliance unless otherwise required in accordance with or breach of this Section 6.10(d) shall be that any Post-Closing Tax Action shall be ignored when determining the final Merger Consideration under Article IIapplicable Legal Requirements.

Post-Closing Tax Actions. Following the Closing Acquiror shall not, and until the Merger Consideration is finally determined under Article II, Parent and shall not permit its Affiliates (including the Company and its Subsidiaries after the Closing) shall not to, (i) file (unless the original due date for such Tax Return is after the Closing Date) except in accordance with Section 7.5(a)), re-file or amend any Tax Return of the Company or any of its Subsidiaries for the Company Entities with respect to a taxable period or portion thereof ending on or prior to the Pre-Closing DateTax Period, (ii) extend or waive the applicable statute of limitations with respect to a Tax surrender any right of the Company or the Company Entities to claim a Tax refund, credit, or other offset of Taxes with respect to any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Pre-Closing DateTax Period, (iii) file liquidate, dissolve, or take any ruling other action, including, without limitation, by filing an entity classification election with the IRS, to change the classification of the Surviving Company for U.S. federal (and any analogous state or request with local) income Tax purposes for any taxing authority that relates Pre-Closing Tax Period, (iv) consent to the waiver or extension of the statute of limitations relating to Taxes of the Surviving Company for a Pre-Closing Tax Period, (v) file a voluntary disclosure agreement (or Tax Returns similar voluntary compliance or self-corrective action) or otherwise enter into any voluntary disclosure discussions or arrangements with a Governmental Entity with respect to Taxes of the Company or the Company Entities relating to a Pre-Closing Tax Period, or (vi) change any accounting method or adopt any convention of its Subsidiaries for or with respect to the Company or the Company Entities that shifts taxable income from a period beginning (or deemed to begin) after the Closing Date to a taxable period (or portion thereof thereof) ending on or prior to the Closing Date, (iv) change any current practice or procedure or accounting method, in each case with respect to Taxes, of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (v) make, change or revoke any Tax election (including an election under Section 336 or 338 of the Code or any similar provision of foreign, state or local law) that relates to, or is retroactive to, a taxable period or portion thereof ending on or prior to before the Closing Date, or (vi) enter into any voluntary disclosure with any taxing authority regarding any Tax shift deductions or Tax Returns of the Company or any of its Subsidiaries (collectively, “Postlosses from a Pre-Closing Tax Actions”)Period to a period beginning (or deemed to begin) after the Closing Date, in each case, without the Securityholder Representative’s prior written consent of the Representative (not to be unreasonably withheld, conditioned or delayed); provided, however, that for any such action that is required by applicable Law or would not reasonably be expected to give rise to indemnifiable Taxes under this Agreement, Acquiror shall use commercially reasonable efforts to notify the Securityholder Representative of such action but shall not be required to obtain the Securityholder Representative’s consent. Notwithstanding the foregoingthis Section 7.5(e), Acquiror shall be permitted, in its sole discretion, to make an election under Section 338 (or corresponding or similar provisions of U.S. state or local Law) (collectively, the Parties acknowledge “Section 338 Election”) with respect to the transactions contemplated by this Agreement (other than with respect to Cloud Light Technology U.S.A., Inc.), provided that either (x) the Closing shall have occurred by no later than April 28, 2024 or (y) in the event the Closing shall have occurred later than April 28, 2024, Acquiror shall pay to each applicable “United States shareholder” of the Company (as defined in Section 951(b) of the Code) an amount equal to any incremental income Taxes incurred by such Person (and agree any of their partners, members, stockholders or other equity holders) as a result of the Section 338 Election (including, for the avoidance of doubt, any income Taxes incurred by such Person (and any of their partners, members, stockholders or other equity holders) as a result of the additional payment provided by this clause), determined on a with and without basis, with such amount intended to put such Person(s) in the same after-tax position as if the Section 338 Election had not been made (the “338 Gross-Up Amount”); provided, however, that the sole remedy payment of any 338 Gross-Up Amount shall be conditioned on the delivery by each applicable Shareholder of an estimate of such 338 Gross-Up Amount (including all supporting calculations and workpapers) to Acquiror within ninety (90) days of the Closing for noncompliance with Acquiror’s review and comment, provided that Acquiror and its Affiliates (including the Surviving Company) shall have provided, upon written request of a Shareholder, information in the possession of Acquiror (or breach its Affiliates) that is reasonably necessary to calculate such estimate of the 338 Gross-Up Amount, and the final 338 Gross-Up Amount shall be calculated in a manner that takes into account Acquiror’s reasonable comments; provided further that, in any event, upon written request of a Shareholder, Acquiror and its Affiliates (including the Surviving Company) shall provide any additional financial, tax and other information reasonably necessary for the Shareholders and their respective Affiliates, members, partners and other equity holders to file any tax returns in connection with, or to otherwise account for as part of ordinary course bookkeeping, such election. Any payment of the 338 Gross-Up Amount made under this Section 6.10(d7.5(e) to the maximum extent permitted by applicable Law, shall be that any Posttreated for all Tax purposes as consideration paid in respect of the applicable Company Securities held by the Shareholder to whom the 338 Gross-Closing Tax Action shall be ignored when determining the final Merger Consideration under Article IIUp Amount was paid.

Post-Closing Tax Actions. Following Except to the Closing and until extent expressly contemplated by this Agreement, or with the Merger Consideration is finally determined under Article II, Parent and its Affiliates prior written consent of the Seller Representative (including the Company and its Subsidiaries after the Closing) which consent shall not (i) file (unless the original due date for such Tax Return is after the Closing Date) be unreasonably withheld, conditioned or amend any Tax Return of delayed), Buyer will not, and will not cause or permit the Company or any of its Subsidiaries other Affiliates to, (a) file, re-file, amend or otherwise modify (i) any Pass-Through Income Tax Return with respect to the Company for a taxable period Pre-Closing Tax Period or portion thereof ending on or (ii) any other Tax Return for a Pre-Closing Tax Period prior to the Closing Datefinal determination of the Adjusted Purchase Price pursuant to Section 2.2, (ii) extend or waive the applicable statute of limitations with respect to a Tax of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (iii) file any ruling or request with any taxing authority that relates to Taxes or Tax Returns of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (iv) change any current practice or procedure or accounting method, in each case with respect to Taxes, of the Company or any of its Subsidiaries for a taxable period or portion thereof ending on or prior to the Closing Date, (vb) make, change or revoke any Tax election with respect to the Company with respect to (including an election under Section 336 i) any Pass-Through Income Tax Return for a Pre-Closing Tax Period or 338 (ii) any other Tax Return for a Pre-Closing Tax Period prior to the final determination of the Code Adjusted Purchase Price pursuant to Section 2.2, (c) agree to the waiver of or any similar provision extension to the statute of foreign, state or local law) that relates tolimitations with respect to any Taxes of the Company with respect to a Pass-Through Income Tax Return for a Pre-Closing Tax Period, or is retroactive to(d) initiate, file or enter into a taxable period voluntary disclosure agreement or portion thereof ending on similar agreement in respect of any Pre-Closing Tax Period (other than any such agreements with respect to sales, use or other similar Taxes that are due and payable prior to the Closing Date, or (vi) enter into any but only to the extent such voluntary disclosure with any taxing authority regarding any Tax agreement or Tax Returns of similar agreement would reasonably be expected to affect the Closing Working Capital, Company Debt or any of its Subsidiaries (collectively, “Post-Closing Tax Actions”)Seller Transaction Expenses, in each casecase as finalized pursuant to Section 2.2(d), without except in the prior written consent case of clauses (a) or (b) with respect to Pass-Through Income Tax Returns that are Buyer Tax Returns prepared and filed in accordance with the Representative (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the Parties acknowledge and agree that the sole remedy for noncompliance with or breach provisions of this Section 6.10(d) shall be that any Post-Closing Tax Action shall be ignored when determining the final Merger Consideration under Article II7.3.