Audits and Other Proceedings. (a) Following the Closing Date, Seller shall control the conduct of any audit or other administrative of judicial proceeding with respect to Taxes of any Affiliated Group of which Seller or any of the Retained Companies is the common parent or for which Seller otherwise may be obligated to indemnify Buyer Indemnitees pursuant to Section 6.1; provided, that (i) Buyer may elect to participate in the control of such audit or proceeding jointly with Seller to the extent such audit or proceeding relates to Taxes attributable to any Acquired Company for a Bridge Period; (ii) Buyer, in its sole discretion, may assume joint control of any such audit or 105 proceeding for Tax years beginning before 1992 for any Affiliated Group of which MAL was the common parent if MAL is placed under supervision by a state regulatory authority or is subject to court supervised conservation, rehabilitation, liquidation or similar proceeding or if there is a transfer of control (including control of Tax audits) of MAL to a party other than Seller or its Affiliates; (iii) Buyer shall control any audit or proceeding to the extent (but only to the extent) such audit or proceeding relates to (A) Taxes for which Buyer would be obligated to indemnify Seller Indemnitees pursuant to Section 6.1 or Section 6.5(e)(ii) or (B) Taxes for which the Seller would have been entitled to a refund but for the Failed QSP; and (iv) Buyer shall control any audit or proceeding to the extent (but only to the extent) such audit or proceeding relates to the qualification of the sale of the shares of SWL as a Qualified Stock Purchase. In the event Buyer assumes control or joint control of any audit or administrative or judicial proceeding pursuant to this Section 6.4, Seller shall, and shall cause MAL and the other Retained Companies to, provide Buyer with any reasonable assistance requested by Buyer in connection with such audit or other proceeding, including, without limitation, executing any power of attorney or other document which is necessary or appropriate to enable Buyer to act on behalf of, or jointly on behalf of, Seller of MAL. Buyer shall control the conduct of all other audits or administrative or judicial proceedings with respect to the liability for Taxes of the Acquired Companies for any taxable period or portion thereof. With respect to any audit or other proceeding that Seller controls, Seller shall (1) promptly provide Buyer with, or cause to be provided to Buyer, written notice of any claim, or of the commencement of any audit or proceeding, regarding the liability for Taxes of any Affiliated Group for any affiliated Tax year together with all correspondence, notices or other documents received by Seller or any of its Affiliates with respect thereto; (2) provide, or cause to be provided, Buyer with notice of and an opportunity to attend any meeting with the IRS or other taxing authorities regarding any such claim, audit or proceeding; (3) consult with Buyer or its Tax advisors, or cause Buyer or its Tax advisors to be consulted, with respect to any material action Seller or any of its Affiliates may take with respect to any such claim, audit or proceeding; (4) afford, or cause to be afforded to, Buyer and its Tax advisors the right to participate in conferences with the relevant taxing authorities (including, without limitation, executing any power of attorney or other 106 document that is required to enable, and, to the extent permitted by applicable law (or by agreement between any or all of Buyer, Buyer's tax advisors, Seller and MAL), is solely for purpose of enabling, Buyer and its Tax advisers to so participate); (5) permit Buyer to be permitted, to review and comment upon any material written submission to the IRS or other taxing authorities prior to its submission; and (6) shall not, and shall not permit any of its Affiliates to, grant any extension or waiver of any applicable statue of limitations for any taxable period beginning after December 31, 1992 or enter into any settlement of agreement in compromise of any proposed adjustment with respect to the liability for Taxes of any Affiliated Group for any affiliated tax year without the express written consent of Buyer; provided that in the event the (w) Buyer fails to consent to any such settlement or agreement in compromise with respect to any Taxes for which Seller or the Seller's Subsidiaries have liability under Section 6.1 to indemnify Buyer Indemnitees; (x) such settlement or agreement would not have the result of materially increasing the Taxes of any Buyer Indemnitees or any consolidated, combined, or unitary group of which any Buyer Indemnitee is a member for any taxable period or portion thereof beginning after the Closing Date or any Taxes for which Buyer has liability pursuant to Section 6.1(b) (in each case through the operation of the terms of such settlement or agreement or through the potential resolutions of the same or similar issues for any such period or portion thereof on the same or similar basis as under such settlement or agreement); (y) Seller identifies the sources from which Taxes due pursuant to such settlement or agreement would be paid, including from the Indemnity Escrow Amount to the extent permitted by Article VIII; and (z) Seller deposits in an escrow account (subject to terms and conditions reasonably acceptable to Buyer), any amount so identified by Seller to be funded from sources other than the Indemnity Escrow Account, then Seller may elect to transfer complete control of the related audit or proceeding to Buyer by providing written notice to Buyer, in which case the amount for which Seller and the Selling Subsidiaries shall be required to indemnify Buyer Indemnitees on account of Taxes expressly covered by such settlement or agreement in compromise shall be limited to the amount of such proposed settlement or agreement in compromise plus interest, penalties and additions to Tax determined through the date Buyer assumes control. (b) During the period beginning on the Execution Date and ending on the Closing Date, none of the Seller or its Affiliates shall enter into any settlement or agreement in compromise with respect to Taxes with the IRS or any other taxing authority, including without limitation by executing an IRS Form 870-AD, without the prior written consent of Buyer, which shall not be unreasonably withheld. For purposes of the preceding sentence, consent shall be deemed to have been reasonably withheld if Buyer withholds consent from a settlement or agreement in compromise that would adversely affect the protection from Losses resulting from, or arising out of, Taxes that would otherwise have been provided to Buyer, the Acquired Companies or an Affiliate of any thereof, by the Indemnity Escrow Account or by funds otherwise provided for in this Agreement to secure the obligations of Seller and its Affiliates under Article VIII, or would otherwise result in a Material Adverse Effect to Buyer, the Acquired Companies or any Affiliate thereof. (c) Seller and Selling Subsidiaries shall use their best efforts, in their reasonable business judgment, to expedite the determination of their federal income tax liability for all taxable periods through the Closing Date consistent with minimizing the taxes payable by Seller and its Affiliates. Buyer shall have standing to seek to have the Bankruptcy Court compel Seller and the Selling Subsidiaries to take such actions as are necessary to comply with the foregoing requirement. Seller shall provide in any plan of reorganization proposed by it for the Bankruptcy Court to retain jurisdiction after confirmation of such plan over resolution of disputes between Seller and the IRS regarding the allowance or disallowance of federal income tax claims for tax periods prior to the confirmation of such plan. (d) All references to the right of Buyer to control or participate in any audit or proceeding, or to consent to or approve any settlement or agreement in compromise, and all rights granted to Buyer under the fourth sentence of Section 6.4(a), shall extend also to PennCorp to the extent the audit or proceeding relates to Taxes the payment of which would be guaranteed to Seller by PennCorp (including any Taxes the refund of which is so guaranteed). Any right to exercise control of, or to approve or consent to, any matter covered by the preceding sentence shall require the exercise jointly by, or require the joint consent or approval of, Buyer and PennCorp. 108
Appears in 1 contract
Sources: Purchase Agreement (Ich Corp /De/)
Audits and Other Proceedings. (a) Following the Closing Date, the Seller shall, and shall be furnished by the Purchaser, the Company or a Subsidiary, as the case may be, with powers of attorney, or any other document or authorization necessary or appropriate to enable it to, control the conduct of all stages of any audit or other administrative of or judicial proceeding with respect to Taxes of any Affiliated Group of which Seller or any of the Retained Companies is the common parent or for which Seller otherwise may be obligated to indemnify Buyer Indemnitees pursuant to Section 6.1; provided, that (i) Buyer may elect to participate in the control of such audit or proceeding jointly with Seller to the extent such audit or proceeding relates to Taxes attributable to any Acquired Company for a Bridge Period; (ii) Buyer, in its sole discretion, may assume joint control of any such audit or 105 proceeding for Tax years beginning before 1992 for any Affiliated Group of which MAL was the common parent if MAL is placed under supervision by a state regulatory authority or is subject to court supervised conservation, rehabilitation, liquidation or similar proceeding or if there is a transfer of control (including control of Tax audits) of MAL to a party other than Seller or its Affiliates; (iii) Buyer shall control any audit or proceeding to the extent (but only to the extent) such audit or proceeding relates to (A) Taxes for which Buyer would be obligated to indemnify Seller Indemnitees pursuant to Section 6.1 or Section 6.5(e)(ii) or (B) Taxes for which the Seller would have been entitled to a refund but for the Failed QSP; and (iv) Buyer shall control any audit or proceeding to the extent (but only to the extent) such audit or proceeding relates to the qualification of the sale of the shares of SWL as a Qualified Stock Purchase. In the event Buyer assumes control or joint control of any audit or administrative or judicial proceeding is liable pursuant to this Section 6.4, Seller shall, and shall cause MAL 6.2(a) or Section 6.7 and the other Retained Companies to, provide Buyer with any reasonable assistance requested by Buyer in connection with such audit or other proceeding, including, without limitation, executing any power of attorney or other document which is necessary or appropriate to enable Buyer to act on behalf of, or jointly on behalf of, Seller of MAL. Buyer Purchaser shall control the conduct of all other audits or administrative or judicial proceedings with respect to the Tax liability for Taxes of the Acquired Companies Company and the Subsidiaries for any taxable tax period or portion thereof. Subject to such control:
(i) With respect to any audit or other proceeding that Seller it controls, the Seller (x) shall (1) promptly provide Buyer with, or cause give prompt notice to be provided to Buyer, written notice the Purchaser of any claim, or of the commencement of Tax adjustment proposed in writing pursuant to any audit or proceeding, regarding other proceeding controlled by the liability for Taxes of any Affiliated Group for any affiliated Tax year together with all correspondence, notices or other documents received by Seller or any of its Affiliates with respect thereto; (2) provide, or cause to be provided, Buyer with notice of and an opportunity to attend any meeting with the IRS or other taxing authorities regarding any such claim, audit or proceeding; (3) consult with Buyer or its Tax advisors, or cause Buyer or its Tax advisors to be consulted, with respect to any material action Seller the assets or activities of any of its Affiliates may take the Company or the Subsidiaries, (y) upon the Purchaser's reasonable request shall discuss with respect to any such claim, audit or proceeding; (4) afford, or cause to be afforded to, Buyer the Purchaser and its Tax the Purchaser's tax advisors the right position that it intends to participate in conferences with the relevant taxing authorities (includingtake regarding any issue concerning such assets or activities, without limitation, executing any power of attorney or other 106 document that is required to enable, and, to the extent permitted by applicable law (or by agreement between any or all of Buyer, Buyer's tax advisors, Seller and MAL), is solely for purpose of enabling, Buyer and its Tax advisers to so participate); (5) permit Buyer to be permitted, to review and comment upon any material written submission to the IRS or other taxing authorities prior to its submission; and (6z) shall not, and shall not permit any of its Affiliates to, grant any extension or waiver of any applicable statue of limitations for any taxable period beginning after December 31, 1992 or enter into any settlement of agreement in compromise of any proposed adjustment with respect to the liability for Taxes of any Affiliated Group for any affiliated tax year without the express written consent of Buyer; provided that in the event the (w) Buyer fails to consent to any such settlement or agreement in compromise with respect to any Taxes for which Seller or the Seller's Subsidiaries have liability under Section 6.1 to indemnify Buyer Indemnitees; (x) such settlement or agreement would not have the result of materially increasing the Taxes of any Buyer Indemnitees or any consolidated, combined, or unitary group of which any Buyer Indemnitee is a member for any taxable period or portion thereof beginning after the Closing Date or any Taxes for which Buyer has liability pursuant to Section 6.1(b) (in each case through the operation of the terms of such settlement or agreement or through the potential resolutions of the same or similar issues for any such period or portion thereof on the same or similar basis as under such settlement or agreement); (y) Seller identifies the sources from which Taxes due pursuant to such settlement or agreement would be paid, including from the Indemnity Escrow Amount to the extent permitted by Article VIII; and (z) Seller deposits in an escrow account (subject to terms and conditions reasonably acceptable to Buyer), any amount so identified by Seller to be funded from sources other than the Indemnity Escrow Account, then Seller may elect to transfer complete control of the related audit or proceeding to Buyer by providing written notice to Buyer, in which case the amount for which Seller and the Selling Subsidiaries shall be required to indemnify Buyer Indemnitees on account of Taxes expressly covered by such settlement or agreement in compromise shall be limited to the amount of such proposed settlement or agreement in compromise plus interest, penalties and additions to Tax determined through the date Buyer assumes control.
(b) During the period beginning on the Execution Date and ending on the Closing Date, none of the Seller or its Affiliates shall enter into any settlement or agreement in compromise of any proposed adjustment which purports to bind the Purchaser, the Company or any Subsidiary with respect to Taxes with any Tax period ending after the IRS or any other taxing authority, including without limitation by executing an IRS Form 870-AD, Closing Date without the prior express written consent of Buyerthe Purchaser, which consent shall not be unreasonably withheld, and
(ii) The Purchaser (x) shall give prompt notice to the Seller of the commencement of any audit or other proceeding which could reduce the amount of any net operating losses, net capital losses, tax credits or other federal, state or local tax benefits (or any carryforwards of such amounts) available to the Company or any Subsidiary as of the Closing Date or could give rise to a claim for payment against the Seller under this Agreement; (y) with respect to any audit or proceeding controlled by the Purchaser, shall afford the Seller and its tax advisors a reasonable opportunity to participate in the conduct of any administrative or judicial proceeding regarding a proposed adjustment described in clause (x) above including, without limitation, the right to participate in conferences with taxing authorities and submit pertinent material in support of the Seller's position, and (z) shall not, and shall not permit any of its Affiliates to, accept any proposed adjustment or enter into any settlement or agreement in compromise which would result in the reduction of any tax benefit or carryforward described in Clause (x) above or in a claim for indemnification against the Seller pursuant to this agreement without the Seller's express written consent which shall not be unreasonably withheld. For purposes of the preceding sentence, consent shall be deemed to have been reasonably withheld if Buyer withholds consent from a settlement or agreement in compromise that would adversely affect the protection from Losses resulting from, or arising out of, Taxes that would otherwise have been provided to Buyer, the Acquired Companies or an Affiliate of any thereof, by the Indemnity Escrow Account or by funds otherwise provided for in this Agreement to secure the obligations of Seller and its Affiliates under Article VIII, or would otherwise result in a Material Adverse Effect to Buyer, the Acquired Companies or any Affiliate thereof.
(c) Seller and Selling Subsidiaries shall use their best efforts, in their reasonable business judgment, to expedite the determination of their federal income tax liability for all taxable periods through the Closing Date consistent with minimizing the taxes payable by Seller and its Affiliates. Buyer shall have standing to seek to have the Bankruptcy Court compel Seller and the Selling Subsidiaries to take such actions as are necessary to comply with the foregoing requirement. Seller shall provide in any plan of reorganization proposed by it for the Bankruptcy Court to retain jurisdiction after confirmation of such plan over resolution of disputes between Seller and the IRS regarding the allowance or disallowance of federal income tax claims for tax periods prior to the confirmation of such plan.
(d) All references to the right of Buyer to control or participate in any audit or proceeding, or to consent to or approve any settlement or agreement in compromise, and all rights granted to Buyer under the fourth sentence of Section 6.4(a), shall extend also to PennCorp to the extent the audit or proceeding relates to Taxes the payment of which would be guaranteed to Seller by PennCorp (including any Taxes the refund of which is so guaranteed). Any right to exercise control of, or to approve or consent to, any matter covered by the preceding sentence shall require the exercise jointly by, or require the joint consent or approval of, Buyer and PennCorp. 108
Appears in 1 contract
Sources: Stock Purchase Agreement (Golden American Life Insurance Co /Ny/)
Audits and Other Proceedings. (a) Purchaser will give prompt notice to Seller of the commencement of any audit or other proceeding which could give rise to a claim for payment or indemnity against Seller under this Agreement, and Seller will give prompt notice to Purchaser of the commencement of any audit or other proceeding which could give rise to a claim for payment or indemnity against Purchaser under this Agreement. Purchaser's or Seller's failure to give such prompt notice will reduce Seller's or Purchaser's respective indemnification obligation pursuant to Section 10.6.4.1 to the extent it is actually prejudiced by such failure. Following the Closing Date, (i) Seller shall will control the conduct of all stages of any audit or other administrative of or judicial proceeding with respect to all Taxes relating to Tax Returns of any Affiliated Group of which or relating to the Company or either Company Subsidiary required to be filed by Seller or any of the Retained Companies is the common parent or for which Seller otherwise may be obligated to indemnify Buyer Indemnitees pursuant to Section 6.1; provided10.6.1, that (i) Buyer may elect to participate in the control of such audit or proceeding jointly with Seller to the extent such audit or proceeding relates to Taxes attributable to any Acquired Company for a Bridge Period; and (ii) Buyer, in its sole discretion, may assume joint control of any such audit or 105 proceeding for Tax years beginning before 1992 for any Affiliated Group of which MAL was the common parent if MAL is placed under supervision by a state regulatory authority or is subject to court supervised conservation, rehabilitation, liquidation or similar proceeding or if there is a transfer of control (including control of Tax audits) of MAL to a party other than Seller or its Affiliates; (iii) Buyer shall control any audit or proceeding to the extent (but only to the extent) such audit or proceeding relates to (A) Taxes for which Buyer would be obligated to indemnify Seller Indemnitees pursuant to Section 6.1 or Section 6.5(e)(ii) or (B) Taxes for which the Seller would have been entitled to a refund but for the Failed QSP; and (iv) Buyer shall control any audit or proceeding to the extent (but only to the extent) such audit or proceeding relates to the qualification of the sale of the shares of SWL as a Qualified Stock Purchase. In the event Buyer assumes control or joint control of any audit or administrative or judicial proceeding pursuant to this Section 6.4, Seller shall, and shall cause MAL and the other Retained Companies to, provide Buyer with any reasonable assistance requested by Buyer in connection with such audit or other proceeding, including, without limitation, executing any power of attorney or other document which is necessary or appropriate to enable Buyer to act on behalf of, or jointly on behalf of, Seller of MAL. Buyer shall Purchaser will control the conduct of all other audits or administrative or judicial proceedings with respect to the Tax liability for Taxes of the Acquired Companies Company and the Company Subsidiaries for any taxable other tax period or portion thereof. ; PROVIDED, HOWEVER, that Purchaser shall control at its expense that portion of any audit or other administrative or judicial proceeding with respect to any disallowance referred to in clause (y) of Section 10.6.4.1, but only to the extent such control by Purchaser does not materially interfere with Seller's ability to diligently address other issues in connection with such audit or proceedings, it being understood that Seller and Purchaser shall cooperate as reasonably requested in order to maximize Purchaser's ability to control such portion of such audit or proceedings without such interference.
(A) With respect to any audit or other proceeding that Seller it controls, Seller shall (1x) promptly provide Buyer with, or cause will give prompt notice to be provided to Buyer, written notice Purchaser of any claim, or of the commencement of Tax adjustment proposed in writing pursuant to any audit or proceeding, regarding the liability for Taxes of any Affiliated Group for any affiliated Tax year together with all correspondence, notices or other documents received proceeding controlled by Seller or any of its Affiliates with respect thereto; (2) provide, or cause to be provided, Buyer with notice of and an opportunity to attend any meeting with the IRS or other taxing authorities regarding any such claim, audit or proceeding; (3) consult with Buyer or its Tax advisors, or cause Buyer or its Tax advisors to be consulted, with respect to any material action Seller the assets or any activities of its Affiliates may take either of the Company or either Company Subsidiary; upon Purchaser's reasonable request will discuss with respect to any such claim, audit or proceeding; (4) afford, or cause to be afforded to, Buyer Purchaser and its Tax advisors counsel the right position that Seller intends to participate in conferences with the relevant taxing authorities (including, without limitation, executing take regarding any power of attorney issue concerning such assets or other 106 document that is required to enable, and, to the extent permitted by applicable law (or by agreement between any or all of Buyer, Buyer's tax advisors, Seller and MAL), is solely for purpose of enabling, Buyer and its Tax advisers to so participate); (5) permit Buyer to be permitted, to review and comment upon any material written submission to the IRS or other taxing authorities prior to its submissionactivities; and (6y) shall will not, and shall will not permit any of its Affiliates to, grant any extension or waiver of any applicable statue of limitations for any taxable period beginning after December 31, 1992 or enter into any settlement of agreement in compromise of any proposed adjustment with respect to the liability for Taxes of any Affiliated Group for any affiliated tax year without the express written consent of Buyer; provided that in the event the (w) Buyer fails to consent to any such settlement or agreement in compromise with respect to any Taxes for which Seller or the Seller's Subsidiaries have liability under Section 6.1 to indemnify Buyer Indemnitees; (x) such settlement or agreement would not have the result of materially increasing the Taxes of any Buyer Indemnitees or any consolidated, combined, or unitary group of which any Buyer Indemnitee is a member for any taxable period or portion thereof beginning after the Closing Date or any Taxes for which Buyer has liability pursuant to Section 6.1(b) (in each case through the operation of the terms of such settlement or agreement or through the potential resolutions of the same or similar issues for any such period or portion thereof on the same or similar basis as under such settlement or agreement); (y) Seller identifies the sources from which Taxes due pursuant to such settlement or agreement would be paid, including from the Indemnity Escrow Amount to the extent permitted by Article VIII; and (z) Seller deposits in an escrow account (subject to terms and conditions reasonably acceptable to Buyer), any amount so identified by Seller to be funded from sources other than the Indemnity Escrow Account, then Seller may elect to transfer complete control of the related audit or proceeding to Buyer by providing written notice to Buyer, in which case the amount for which Seller and the Selling Subsidiaries shall be required to indemnify Buyer Indemnitees on account of Taxes expressly covered by such settlement or agreement in compromise shall be limited to the amount of such proposed settlement or agreement in compromise plus interest, penalties and additions to Tax determined through the date Buyer assumes control.
(b) During the period beginning on the Execution Date and ending on the Closing Date, none of the Seller or its Affiliates shall enter into any settlement or agreement in compromise of any proposed adjustment which purports to bind Purchaser, the Company or either Company Subsidiary with respect to Taxes with any tax period ending after the IRS or any other taxing authority, including without limitation by executing an IRS Form 870-AD, Closing Date without the prior express written consent of BuyerPurchaser, which shall consent will not be unreasonably withheld. For purposes ; and
(B) With respect to any audit or proceeding controlled by Purchaser and relating to any period or Tax with respect to which Seller may have an indemnification obligation hereunder, Purchaser (x) will afford Seller and its counsel a reasonable opportunity to participate in the conduct of any administrative or judicial proceeding regarding a proposed adjustment including, without limitation, the preceding sentenceright to participate in conferences with tax authorities and submit pertinent material in support of Seller's position; and (y) will not, consent shall be deemed to have been reasonably withheld if Buyer withholds consent from a and will not permit any of its Affiliates to, accept any proposed adjustment or enter into any settlement or agreement in compromise that would adversely affect the protection from Losses resulting from, or arising out of, Taxes that would otherwise have been provided to Buyer, the Acquired Companies or an Affiliate of any thereof, by the Indemnity Escrow Account or by funds otherwise provided for in this Agreement to secure the obligations of Seller and its Affiliates under Article VIII, or would otherwise which could result in a Material Adverse Effect claim for indemnification against Seller pursuant to Buyerthis Agreement without Seller's express written consent, the Acquired Companies or any Affiliate thereofwhich consent will not be unreasonably withheld.
(c) Seller and Selling Subsidiaries shall use their best efforts, in their reasonable business judgment, to expedite the determination of their federal income tax liability for all taxable periods through the Closing Date consistent with minimizing the taxes payable by Seller and its Affiliates. Buyer shall have standing to seek to have the Bankruptcy Court compel Seller and the Selling Subsidiaries to take such actions as are necessary to comply with the foregoing requirement. Seller shall provide in any plan of reorganization proposed by it for the Bankruptcy Court to retain jurisdiction after confirmation of such plan over resolution of disputes between Seller and the IRS regarding the allowance or disallowance of federal income tax claims for tax periods prior to the confirmation of such plan.
(d) All references to the right of Buyer to control or participate in any audit or proceeding, or to consent to or approve any settlement or agreement in compromise, and all rights granted to Buyer under the fourth sentence of Section 6.4(a), shall extend also to PennCorp to the extent the audit or proceeding relates to Taxes the payment of which would be guaranteed to Seller by PennCorp (including any Taxes the refund of which is so guaranteed). Any right to exercise control of, or to approve or consent to, any matter covered by the preceding sentence shall require the exercise jointly by, or require the joint consent or approval of, Buyer and PennCorp. 108
Appears in 1 contract
Sources: Stock Purchase Agreement (Wellpoint Health Networks Inc /De/)
Audits and Other Proceedings. (a) Following In the case of any audit, examination or administrative, judicial or other proceeding ("Tax Proceedings") with respect to any income Tax Return of the Company and/or the Subsidiaries for periods ending on or prior to the Closing DateDate and including any federal and state final returns filed pursuant to Section 6.14, Seller the Tax Matters Partner shall have the right, except as provided below, to control the conduct of such Tax Proceedings and to initiate any audit claim for refund, file any amended Tax Return or take any other administrative action which it deems appropriate; provided, however, that the Tax Matters Partner shall keep Parent informed of judicial proceeding all matters with respect to Taxes of such Tax Proceeding and shall not agree to or take any Affiliated Group of which Seller action or omit to take any of the Retained Companies is the common parent or for which Seller otherwise may be obligated to indemnify Buyer Indemnitees pursuant to Section 6.1; provided, action that (i) Buyer may elect to participate in the control of such audit or proceeding jointly with Seller to the extent such audit or proceeding relates to Taxes attributable to any Acquired Company for a Bridge Period; (ii) Buyer, in its sole discretion, may assume joint control of any such audit or 105 proceeding for Tax years beginning before 1992 for any Affiliated Group of which MAL was the common parent if MAL is placed under supervision by a state regulatory authority or is subject to court supervised conservation, rehabilitation, liquidation or similar proceeding or if there is a transfer of control (including control of Tax audits) of MAL to a party other than Seller or its Affiliates; (iii) Buyer shall control any audit or proceeding to the extent (but only to the extent) such audit or proceeding relates to (A) Taxes for which Buyer would be obligated reasonably likely to indemnify Seller Indemnitees pursuant to Section 6.1 or Section 6.5(e)(ii) or (B) Taxes for which the Seller would have been entitled to a refund but for the Failed QSP; and (iv) Buyer shall control any audit or proceeding to the extent (but only to the extent) such audit or proceeding relates to the qualification of the sale of the shares of SWL as a Qualified Stock Purchase. In the event Buyer assumes control or joint control of any audit or administrative or judicial proceeding pursuant to this Section 6.4, Seller shall, and shall cause MAL and the other Retained Companies to, provide Buyer with any reasonable assistance requested by Buyer in connection with such audit or other proceeding, including, without limitation, executing any power of attorney or other document which is necessary or appropriate to enable Buyer to act on behalf of, or jointly on behalf of, Seller of MAL. Buyer shall control the conduct of all other audits or administrative or judicial proceedings with respect to the liability for Taxes of the Acquired Companies for any taxable period or portion thereof. With respect to any audit or other proceeding that Seller controls, Seller shall (1) promptly provide Buyer with, or cause to be provided to Buyer, written notice of any claim, or of the commencement of any audit or proceeding, regarding the liability for Taxes of any Affiliated Group for any affiliated Tax year together with all correspondence, notices or other documents received by Seller an adverse effect upon Parent or any of its Affiliates with respect thereto; (2) provide, or cause to be provided, Buyer with notice of and an opportunity to attend any meeting with the IRS or other taxing authorities regarding any such claim, audit or proceeding; (3) consult with Buyer or its Tax advisors, or cause Buyer or its Tax advisors to be consulted, with respect to any material action Seller or any of its Affiliates may take with respect to any such claim, audit or proceeding; (4) afford, or cause to be afforded to, Buyer and its Tax advisors the right to participate in conferences with the relevant taxing authorities (including, without limitation, executing any power of attorney or other 106 document that is required to enable, and, to the extent permitted by applicable law (or by agreement between any or all of Buyer, Buyer's tax advisors, Seller and MAL), is solely for purpose of enabling, Buyer and its Tax advisers to so participate); (5) permit Buyer to be permitted, to review and comment upon any material written submission to the IRS or other taxing authorities prior to its submission; and (6) shall not, and shall not permit any of its Affiliates to, grant any extension or waiver of any applicable statue of limitations for any taxable period beginning after December 31, 1992 or enter into any settlement of agreement in compromise of any proposed adjustment with respect to the liability for Taxes of any Affiliated Group for any affiliated tax year without the express written consent of Buyer; provided that in the event the (w) Buyer fails to consent to any such settlement or agreement in compromise with respect to any Taxes for which Seller or the Seller's Subsidiaries have liability under Section 6.1 to indemnify Buyer Indemnitees; (x) such settlement or agreement would not have the result of materially increasing the Taxes of any Buyer Indemnitees or any consolidated, combined, or unitary group of which any Buyer Indemnitee is a member for any taxable period or portion thereof beginning after the Closing Date or any Taxes for which Buyer has liability pursuant to Section 6.1(b) (in each case through the operation of the terms of such settlement or agreement or through the potential resolutions of the same or similar issues for any such period or portion thereof on the same or similar basis as under such settlement or agreement); (y) Seller identifies the sources from which Taxes due pursuant to such settlement or agreement would be paidsubsidiaries, including from the Indemnity Escrow Amount to the extent permitted by Article VIII; and (z) Seller deposits in an escrow account (subject to terms and conditions reasonably acceptable to Buyer), any amount so identified by Seller to be funded from sources other than the Indemnity Escrow Account, then Seller may elect to transfer complete control of the related audit or proceeding to Buyer by providing written notice to Buyer, in which case the amount for which Seller Surviving Entity and the Selling Subsidiaries shall be required to indemnify Buyer Indemnitees on account of Taxes expressly covered by such settlement or agreement in compromise shall be limited to the amount of such proposed settlement or agreement in compromise plus interest, penalties and additions to Tax determined through the date Buyer assumes control.
(b) During the period beginning on the Execution Date and ending on the Closing Date, none of the Seller or its Affiliates shall enter into any settlement or agreement in compromise with respect to Taxes with the IRS or any other taxing authority, including without limitation by executing an IRS Form 870-ADSubsidiaries, without the prior written consent of BuyerParent; and provided further that the Tax Matters Partner shall permit Parent to control the prosecution of any claim for any refund and to apply for any credit, in each case which is for the account of Parent pursuant to Section 6.15(b). Each of the Tax Matters Partner, on the one hand, and Parent, its subsidiaries and their respective successors and assigns, on the other hand, shall promptly provide the other notice of any formal or informal inquiry that initiates or could initiate a Tax Proceeding and shall cooperate in the conduct of such Tax Proceedings, including making books, records and personnel reasonably available during normal business hours and in a form and location reasonably convenient to the Tax Matters Partner and Parent so as to permit the Tax Matters Partner to properly conduct such Tax Proceedings. The Tax Matters Partner shall keep Parent informed of the progress of any such Tax Proceedings. In the event that for any reason the Tax Matters Partner elects not to control the conduct of such Tax Proceedings, Parent, subject to applicable provisions of Law, shall be entitled to conduct such Tax Proceedings; provided, Parent shall keep the Tax Matters Partner or his designee informed of all matters with respect to such Tax Proceeding and shall not agree to or take any action or omit to take any action that would be unreasonably withheld. For purposes reasonably likely to have an adverse effect upon the former Members without the prior written consent of the preceding sentence, consent shall be deemed to have been reasonably withheld if Buyer withholds consent from a settlement or agreement in compromise that would adversely affect the protection from Losses resulting from, or arising out of, Taxes that would otherwise have been provided to Buyer, the Acquired Companies or an Affiliate of any thereof, by the Indemnity Escrow Account or by funds otherwise provided for in this Agreement to secure the obligations of Seller and its Affiliates under Article VIII, or would otherwise result in a Material Adverse Effect to Buyer, the Acquired Companies or any Affiliate thereofTax Matters Partner.
(cb) Seller and Selling Subsidiaries Notwithstanding anything contained in this Section 6.15 to the contrary, any refunds or credits of Taxes of the Company or any Subsidiary (as distinguished from any refunds or credits of Taxes due to or in respect of any former Member of the Company) for any taxable period shall use their best efforts, in their reasonable business judgment, to expedite the determination of their federal income tax liability for all taxable periods through the Closing Date consistent with minimizing the taxes payable by Seller and its Affiliates. Buyer shall have standing to seek to have the Bankruptcy Court compel Seller and the Selling Subsidiaries to take such actions as are necessary to comply with the foregoing requirement. Seller shall provide in any plan of reorganization proposed by it be for the Bankruptcy Court account of Parent. The Tax Matters Partner shall forward to retain jurisdiction after confirmation Parent any such refund that the Tax Matters Partner (or any of the Members) receives within 10 days of such plan over resolution receipt, or reimburse Parent for any such credit for which any of disputes between Seller and the IRS regarding Members receives a Tax benefit within 10 days of the allowance or disallowance of federal income tax claims for tax periods prior to the confirmation receipt of such planbenefit.
(d) All references to the right of Buyer to control or participate in any audit or proceeding, or to consent to or approve any settlement or agreement in compromise, and all rights granted to Buyer under the fourth sentence of Section 6.4(a), shall extend also to PennCorp to the extent the audit or proceeding relates to Taxes the payment of which would be guaranteed to Seller by PennCorp (including any Taxes the refund of which is so guaranteed). Any right to exercise control of, or to approve or consent to, any matter covered by the preceding sentence shall require the exercise jointly by, or require the joint consent or approval of, Buyer and PennCorp. 108
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