Common use of Post-Closing Tax Matters Clause in Contracts

Post-Closing Tax Matters. (a) Seller shall prepare and file, or cause to be prepared and filed, (A) all Tax Returns of the Target Entities that are required to be filed on or before the Closing Date, (B) all income Tax Returns of ASE (including IRS Form 1065) for Tax Periods ending on or prior to the ASE Transfer Date in which ASE had been treated as a partnership for U.S. federal income tax purposes, it being understood that any Covered Taxes with respect to such Tax Returns will be the responsibility of Seller and (C) all income Tax Returns of each of the Section 338 Companies for any jurisdiction in which such Section 338 Company is treated as a pass-through entity or S corporation) for Tax Periods ending on or prior to the Closing Date, it being understood that any Covered Taxes with respect to such Tax Returns will be the responsibility of Seller. All such Tax Returns shall be prepared in a manner consistent with past practice, except as otherwise required by Law. Seller shall deliver or cause to be delivered to Purchaser any Tax Return described in clause (B) and clause (C) within a reasonable period of time prior to the due date for any such Tax Return so that Purchaser may have an opportunity to review such Tax Return. Purchaser shall prepare or cause to be prepared and file or cause to be filed all other Tax Returns of the Target Entities. Purchaser shall deliver or cause to be delivered to Seller any income Tax Return described in the previous sentence, to the extent it relates to a Pre-Closing Tax Period, within a reasonable period of time prior to the due date for any such Tax Return (after giving effect to any applicable extensions of time for filing) so that Seller may have an opportunity to review such Tax Return. In the event that Purchaser and Seller are unable to agree on the reporting of any item on any Tax Return provided for the other Party’s review pursuant to this Section 8.3(a), Purchaser and Seller shall mutually choose an independent public accounting firm to resolve such dispute, and the decision of such firm shall be final. In the event of an impasse over such selection, the independent public accounting firm shall be selected by a single arbitrator appointed pursuant to the AAA Appointment Process. Expenses of such independent public accounting firm shall be born evenly between Purchaser and Seller. After the Closing, Seller shall not, and shall not permit any of their respective Affiliates to, amend any Tax Returns or change any Tax elections or accounting methods with respect to Target Entities without the prior written consent of Purchaser.

Post-Closing Tax Matters. Buyer acknowledges and agrees that the Shareholder Representative shall have the exclusive power and authority (ai) Seller shall prepare at the expense of the Company, to cause the income tax returns for the last separate taxable year of the Company ending as a result of the consummation of the transactions contemplated by this Agreement and file, or cause the immediate liquidation of the Surviving Corporation through merger to be prepared and filed, (A) all Tax Returns filed in accordance with historic practices and procedures of the Target Entities that are required to be filed on or before Company and applicable law (provided, however, the Closing Date, (B) all income Tax Returns Shareholder Representative shall follow the instructions of ASE (including IRS Form 1065) for Tax Periods ending on or prior to the ASE Transfer Date in which ASE had been treated as a partnership for U.S. federal income tax purposes, it being understood that any Covered Taxes Buyer with respect to determining and reporting the treatment and effects of such Tax Returns will liquidation through merger, which shall be solely the responsibility of Seller and the Buyer), (Cii) all income Tax Returns of each to control the conduct of the Section 338 Companies for Surviving Corporation in respect of any jurisdiction in which such Section 338 Company is treated as a pass-through entity tax audit or S corporation) for Tax Periods ending on examination and any administrative appeal or prior to the Closing Date, it being understood that any Covered Taxes with respect to such Tax Returns will be the responsibility of Seller. All such Tax Returns shall be prepared in a manner consistent with past practice, except as otherwise required by Law. Seller shall deliver or cause to be delivered to Purchaser any Tax Return described in clause (B) and clause (C) within a reasonable period of time prior to the due date for any such Tax Return so that Purchaser may have an opportunity to review such Tax Return. Purchaser shall prepare or cause to be prepared and file or cause to be filed all other Tax Returns of the Target Entities. Purchaser shall deliver or cause to be delivered to Seller any income Tax Return described in the previous sentencelitigation relating thereto, to the extent it relates to any Taxes required to be paid by the Company for periods ending on or before the Closing Date if such Taxes are payable (the costs of any such audit or examination shall be borne by the Surviving Corporation until the issuance of a Pre-notice of deficiency, whereas the costs of any administrative appeal or litigation after the issuance of a notice of deficiency shall be borne by the Company Shareholders), (iii) subject to the provisions of this Section to determine whether and to what extent to amend any Tax return filed before the Closing Date or which is described in the immediately preceding clause (i), and (iv) whether and to what extent the Surviving Corporation shall extend or waive any statute of limitations for the assessment of any Tax Periodrequired to be paid by the Company for periods ending on or before the Closing Date if such Tax is payable. Buyer shall have the right to participate in any such amendment, within extension of limitation, tax audit, examination, appeal or litigation (collectively, a "tax proceeding") at Buyer's sole expense, and, notwithstanding the immediately preceding sentence, to jointly control with the Shareholder Representative any such tax proceeding if (i) the amount claimed by the taxing authority in a notice of deficiency would result in a liability to the Surviving Corporation or its Subsidiaries that exceeds the amount of Damages for which the Company Shareholders are liable pursuant to Article IX or (ii) the proposed tax proceeding would reasonably result in a material tax -34- 41 or expense to any Controlled Entity. In no event shall the Shareholder Representative settle any such tax proceeding without Buyer's consent if such settlement would materially adversely affect the Surviving Corporation or any of its subsidiaries (or a Buyer Affiliate that is a successor in interest to the Surviving Corporation or any of its subsidiaries) with respect to any period after the Closing or result in any material liability on the part of the Surviving Corporation or such successor in interest which is not required to be paid by the Company Shareholders pursuant to Section 9.2 of this Agreement or pursuant to the Escrow Agreement or (ii) any Controlled Entity or a Buyer Affiliate that is the successor in interest of such Controlled Entity. For purposes of this Section 6.8, a material effect shall be deemed to be an expense, charge, loss or adverse change in an amount in excess of the amount in the Escrow Fund as of the date of determination of such expense, charge, loss or adverse change. The Buyer shall have the right to file amended income tax returns for the Company or its Subsidiaries for any period, provided that the result of such amended return would not affect the liability of the Shareholders (i) for Damages hereunder or for any other damages, costs, expenses or obligations of any nature or (ii) for income taxes or other Taxes for any of the Controlled Entities, in which event the Shareholder Representative and the Buyer (or a Buyer Affiliate that is a successor in interest to the Company) or any of its Subsidiaries must consent in writing to and Shareholder Representative shall jointly control with the Buyer (or its Affiliate successor in interest to the Company and its Subsidiaries) the filing of any such amended income tax return and all matters relating thereto. The Buyer (or a Buyer Affiliate that is a successor in interest to the Company) shall afford the Shareholder Representative a reasonable opportunity to review any proposed form of income Tax Return of the Company (such as a state income tax return) for any period of time prior to that begins before and ends after the due date for Closing Date and shall not file any such Tax Return (after giving effect to any applicable extensions of time for filing) so that Seller may have an opportunity to review such Tax Return. In the event that Purchaser and Seller are unable to agree on the reporting of any item on any Tax Return provided for the other Party’s review pursuant to this Section 8.3(a), Purchaser and Seller shall mutually choose an independent public accounting firm to resolve such dispute, and the decision of such firm shall be final. In the event of an impasse over such selection, the independent public accounting firm shall be selected by a single arbitrator appointed pursuant to the AAA Appointment Process. Expenses of such independent public accounting firm shall be born evenly between Purchaser and Seller. After the Closing, Seller shall not, and shall not permit any of their respective Affiliates to, amend any Tax Returns or change any Tax elections or accounting methods with respect to Target Entities without the prior written consent of Purchaserthe Shareholder Representative, which consent shall not be unreasonably withheld. The Shareholder Representative and the Buyer (or a Buyer Affiliate that is a successor in interest to the Company) shall jointly control any tax proceeding with respect to any such income tax return.

Post-Closing Tax Matters. (a) For the one year period immediately following the closing, Buyer agrees to provide to Seller shall prepare such financial and other information as may reasonably be requested by Seller in order for Seller to properly and accurately complete and file, or cause to be prepared with the appropriate United States, state and filedlocal governmental agencies, (A) all Tax Returns of the Target Entities that are tax returns and reports required to be filed on or before for the Closing Date, (B) all income Tax Returns of ASE (including IRS Form 1065) Company for Tax Periods tax periods ending on or prior to the ASE Transfer Date in which ASE had been treated as effective date of the closing. Buyer agrees to provide such information within 45 days of Seller's request. Seller will prepare and file all required tax returns and reports for the Company for periods up to and including the effective date of the closing. Seller will be responsible for all tax liabilities of the Company for periods up to and including the effective date of the closing. Buyer will be responsible for all tax liabilities of the Company for periods subsequent to the effective date of the closing. To the extent that the Company or Buyer receives a partnership for U.S. federal income refund of taxes related to periods prior to the effective date of the closing, Buyer or the Company will remit such tax purposesrefund and related interest, it being understood that any Covered Taxes if any, to Seller within 15 days of Buyer's or the Company's receipt. For a period of seven (7) years immediately following the closing, Buyer agrees to provide to Seller such financial and other information with respect to pre-closing periods as may reasonably be requested by Seller in order for Seller to adequately and accurately respond to any inquiries, audits or examinations of pre-closing period tax returns and reports by any United States or state and local governmental agencies. Buyer agrees to provide such Tax Returns will be the responsibility of Seller and (C) all income Tax Returns of each of the Section 338 Companies for any jurisdiction in which such Section 338 Company is treated as a pass-through entity or S corporation) for Tax Periods ending on or prior to the Closing Date, it being understood that any Covered Taxes with respect to such Tax Returns will be the responsibility information within 45 days of Seller's request. All such Tax Returns shall be prepared in In order to appropriately apportion any taxes relating to a manner consistent with past practiceperiod that includes (but that would not, except as otherwise required by Law. Seller shall deliver or cause to be delivered to Purchaser any Tax Return described in clause (Bbut for this section, close on) and clause (C) within a reasonable period of time prior to the due date for any such Tax Return so that Purchaser may have an opportunity to review such Tax Return. Purchaser shall prepare or cause to be prepared and file or cause to be filed all other Tax Returns of closing date, the Target Entities. Purchaser shall deliver or cause to be delivered to Seller any income Tax Return described in the previous sentenceparties hereto will, to the extent it relates permitted by applicable law, elect with the relevant taxing authority to treat for all purposes the closing date as the last day of a Pre-Closing Tax Period, within a reasonable taxable period of time prior the Company, and such period shall be treated as a short period and a pre-closing period for purposes of this Agreement. In any case where applicable law does not permit the Company to treat the closing date as the last day of a short period, then for purposes of this Agreement, the portion of each such tax that is attributable to the due date operations of the Company for any such Tax Return interim period shall be (after giving effect to any applicable extensions i) in the case of time for filing) so a tax that Seller may have an opportunity to review is not based on income or gross receipts, the total amount of such Tax Return. In the event that Purchaser and Seller are unable to agree on the reporting of any item on any Tax Return provided tax for the other Party’s review pursuant to this Section 8.3(a)period in question multiplied by a fraction, Purchaser and Seller shall mutually choose an independent public accounting firm to resolve such disputethe numerator of which is the number of days in the interim period, and the decision denominator of which is the total number of days in such firm shall be final. In period, and (ii) in the event case of an impasse over such selectiona tax that is based on income or gross receipts, the independent public accounting firm shall tax that would be selected by a single arbitrator appointed pursuant to the AAA Appointment Process. Expenses of such independent public accounting firm shall be born evenly between Purchaser and Seller. After the Closing, Seller shall not, and shall not permit any of their respective Affiliates to, amend any Tax Returns or change any Tax elections or accounting methods due with respect to Target Entities without the prior written consent of Purchaserinterim period, if such interim period were a short period.

Post-Closing Tax Matters. Buyer acknowledges and agrees that the Stockholder Representative shall have the exclusive power and authority (ai) Seller shall prepare at the expense of the Company, to cause the income tax returns for the last separate taxable year of the Company ending as a result of the consummation of the transactions contemplated by this Agreement and file, or cause the immediate liquidation of the Surviving Corporation through merger to be prepared and filed, (A) all Tax Returns filed in accordance with historic practices and procedures of the Target Entities that are required to be filed on or before Company and applicable law (provided, however, the Closing Date, (B) all income Tax Returns Stockholder Representative shall follow the instructions of ASE (including IRS Form 1065) for Tax Periods ending on or prior to the ASE Transfer Date in which ASE had been treated as a partnership for U.S. federal income tax purposes, it being understood that any Covered Taxes Buyer with respect to determining and reporting the treatment and effects of such Tax Returns will liquidation through merger, which shall be solely the responsibility of Seller and the Buyer), (Cii) all income Tax Returns of each to control the conduct of the Section 338 Companies for Surviving Corporation in respect of any jurisdiction in which such Section 338 Company is treated as a pass-through entity tax audit or S corporation) for Tax Periods ending on examination and -35- 42 any administrative appeal or prior to the Closing Date, it being understood that any Covered Taxes with respect to such Tax Returns will be the responsibility of Seller. All such Tax Returns shall be prepared in a manner consistent with past practice, except as otherwise required by Law. Seller shall deliver or cause to be delivered to Purchaser any Tax Return described in clause (B) and clause (C) within a reasonable period of time prior to the due date for any such Tax Return so that Purchaser may have an opportunity to review such Tax Return. Purchaser shall prepare or cause to be prepared and file or cause to be filed all other Tax Returns of the Target Entities. Purchaser shall deliver or cause to be delivered to Seller any income Tax Return described in the previous sentencelitigation relating thereto, to the extent it relates to any Taxes required to be paid by the Company for periods ending on or before the Closing Date if such Taxes are payable (the costs of any such audit or examination shall be borne by the Surviving Corporation until the issuance of a Pre-Closing Tax Periodnotice of deficiency, within whereas the costs of any administrative appeal or litigation after the issuance of a reasonable period notice of time prior deficiency shall be borne by the Company Stockholders), (iii) subject to the due date provisions of this Section to determine whether and to what extent to amend any Tax return filed before the Closing Date or which is described in the immediately preceding clause (i), and (iv) whether and to what extent the Surviving Corporation shall extend or waive any statute of limitations for the assessment of any Tax required to be paid by the Company for periods ending on or before the Closing Date if such Tax is payable. Buyer shall have the right to participate in any such Tax Return amendment, extension of limitation, tax audit, examination, appeal or litigation (after giving effect collectively, a "tax proceeding") at Buyer's sole expense, and, notwithstanding the immediately preceding sentence, to jointly control with the Stockholder Representative any such tax proceeding if (i) the amount claimed by the taxing authority in a notice of deficiency would result in a liability to the Surviving Corporation or its Subsidiaries that exceeds the amount of Damages for which the Company Stockholders are liable pursuant to Article IX or (ii) the proposed tax proceeding would reasonably result in a material tax or expense to any applicable extensions of time for filing) so that Seller may have an opportunity to review such Tax ReturnControlled Entity. In no event shall the event Stockholder Representative settle any such tax proceeding without Buyer's consent if such settlement would materially adversely affect the Surviving Corporation or any of its subsidiaries (or a Buyer Affiliate that Purchaser and Seller are unable is a successor in interest to agree the Surviving Corporation or any of its subsidiaries) with respect to any period after the Closing or result in any material liability on the reporting part of any item on any Tax Return provided for the other Party’s review Surviving Corporation or such successor in interest which is not required to be paid by the Company Stockholders pursuant to Section 9.2 of this Section 8.3(a), Purchaser and Seller shall mutually choose an independent public accounting firm to resolve such dispute, and the decision of such firm shall be final. In the event of an impasse over such selection, the independent public accounting firm shall be selected by a single arbitrator appointed Agreement or pursuant to the AAA Appointment Process. Expenses Escrow Agreement or (ii) any Controlled Entity or a Buyer Affiliate that is the successor in interest of such independent public accounting firm Controlled Entity. For purposes of this Section 6.8, a material effect shall be born evenly between Purchaser and Sellerdeemed to be an expense, charge, loss or adverse change in an amount in excess of the amount in the Escrow Fund as of the date of determination of such expense, charge, loss or adverse change. After The Buyer shall have the Closingright to file amended income tax returns for the Company or its Subsidiaries for any period, Seller shall notprovided that the result of such amended return would not affect the liability of the Stockholders (i) for Damages hereunder or for any other damages, and shall not permit costs, expenses or obligations of any nature or (ii) for income taxes or other Taxes for any of their respective Affiliates tothe Controlled Entities, amend in which event the Stockholder Representative and the Buyer (or a Buyer Affiliate that is a successor in interest to the Company) or any Tax Returns of its Subsidiaries must consent in writing to and Stockholder Representative shall jointly control with the Buyer (or change its Affiliate successor in interest to the Company and its Subsidiaries) the filing of any Tax elections or accounting methods with respect to Target Entities without the prior written consent of Purchasersuch amended income tax return and all matters relating thereto.