Common use of Contest Rights Clause in Contracts

Contest Rights. (a) If any party or any of its respective Affiliates receives notice or otherwise becomes aware with respect to any (1) current or future audit, examination, investigation or other proceeding or (2) any claim, demand, assessment (including a notice of proposed assessment), or other assertion, in any case relating to Taxes relating to the Transferred Subsidiaries (or their respective assets or businesses) that could give rise to a liability of the other party hereto (including pursuant to Section 9.1), then such party, shall promptly notify the other party in writing. Each party agrees to consult with and to keep the other party hereto informed on a regular basis regarding the status of any Tax audit or proceeding. Seller and Buyer will cooperate with each other (and cause their respective Affiliates to so cooperate) in the conduct of any audit or other proceeding (including appeals) related to Taxes and all other Tax matters relating to the Transferred Subsidiaries or their respective assets or businesses, and each will execute and deliver such powers of attorney and other documents as are reasonably necessary to carry out the intent of this Agreement. The party requesting cooperation under this Section 6.5(a) will reimburse the other party for any reasonable and actual out-of-pocket expenses reasonably incurred in furnishing such cooperation. (b) Subject to the other provisions of this Section 6.5, Seller shall have the right to control, at its own expense, any and all audits and any and all subsequent proceedings with respect to (i) any Pre-Closing Tax Period or Straddle Period which if adversely resolved, may reasonably be expected to give rise to an Indemnified Tax, (ii) any taxable period reflected on a Combined Tax Return, and (iii) solely for the sake of clarity, any Taxes solely of Seller or any of its Affiliates (other than the Transferred Subsidiaries) not described in clauses (i) or (ii); provided, however, that none of Seller or any of its Affiliates shall settle, compromise, or waive or fail to initiate or pursue any such proceeding (or portion thereof) without the specific prior written consent of Buyer if such settlement, compromise, waiver or failure would cause any of Buyer or any of its Affiliates to be liable for Taxes (other than Indemnified Taxes for which Buyer will be entitled to full and complete indemnification by Seller notwithstanding the limitations contained in Section 9.9 and Section 9.10) for which they would not have been liable absent such settlement, compromise, waiver or failure. Buyer shall have the right to participate in such proceeding at its own expense, and shall be entitled to control the disposition of any issue involved in such proceeding which does not affect a potential liability of Seller. Both Buyer and Seller shall be entitled to represent their own interests in light of their responsibilities (including indemnity obligations) for the related Taxes, at their own expense, in any audit or administrative or judicial proceedings involving a Straddle Period. Except as provided in this Section 6.5, the provisions of Article 9, including the provisions therein addressing settlement authority, shall govern the manner in which any Tax audit or administrative or judicial proceeding relating to Taxes is resolved.

Contest Rights. (a) If any party Upon receipt by Purchaser, either Transferred Subsidiary or any affiliate thereof of its respective Affiliates receives notice or otherwise becomes aware with respect to any (1) current or future audit, examination, investigation or other proceeding or (2) any claim, demand, assessment (including a written notice of proposed assessment)any pending or threatened Tax audits, examinations, protest proceedings, assessments or other assertion, in any case relating to Taxes relating to the Transferred Subsidiaries (or their respective assets or businesses) claims that could give rise to a liability of the other party hereto claim for indemnity under Section 11.02 hereof (including pursuant to Section 9.1an “Indemnifiable Tax Liability”), then such Purchaser shall give notice thereof to Sellers (the “Tax Claim Notice”); provided that a failure to provide a Tax Claim Notice shall not affect a party, shall promptly notify the other party in writing. Each party agrees ’s rights to consult with and to keep the other party hereto informed on a regular basis regarding the status of any Tax audit or proceeding. Seller and Buyer will cooperate with each other (and cause their respective Affiliates to so cooperateindemnification under Section 11.02(a) in the conduct of any audit or other proceeding (including appeals) related to Taxes and all other Tax matters relating except to the Transferred Subsidiaries or their respective assets or businesses, extent that the indemnifying party is actually and each will execute and deliver such powers of attorney and other documents as are reasonably necessary to carry out the intent of this Agreement. The party requesting cooperation under this Section 6.5(a) will reimburse the other party for any reasonable and actual out-of-pocket expenses reasonably incurred in furnishing such cooperationmaterially prejudiced thereby. (b) Subject to paragraph (c) hereof, RARE may elect to control, through their representatives, and at their expense, the other provisions compromise or contest, either administratively or in the courts, of this Section 6.5any Indemnifiable Tax Liability. If RARE elects to so represent the interests of a Transferred Subsidiary or the Purchaser, Seller they shall have within thirty (30) days of delivery of any Tax Claim Notice (or reasonably sooner, if the right nature of the Indemnifiable Tax Liability so requires) notify Purchaser of their intent to do so, and Purchaser shall cooperate, at the sole expense of RARE, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, RARE shall reasonably and in good faith consult with Purchaser with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the generality of the foregoing, Purchaser shall be permitted, at its expense, to be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). RARE shall promptly notify Purchaser in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect a Transferred Subsidiary, Purchaser or any of their respective affiliates with respect to any Post-Closing Period, RARE shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed. If RARE elects not to represent the interests of Transferred Subsidiary, Purchaser may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability. (c) Purchaser shall control, at its own expense, any and all audits and any and all subsequent proceedings tax proceeding for a Straddle Period with respect to (i) any Pre-Closing Tax Period or Straddle Period which if adversely resolved, may reasonably be expected to give rise to an Indemnified Tax, (ii) any taxable period reflected on a Combined Tax Return, and (iii) solely for the sake of clarity, any Taxes solely of Seller or any of its Affiliates (other than the either Transferred Subsidiaries) not described in clauses (i) or (ii)Subsidiary; provided, however, that none (i) Purchaser shall consult with RARE before taking any significant action in connection with such tax proceeding, (ii) Purchaser shall consult with the RARE and offer RARE an opportunity to comment before submitting any written materials prepared or furnished in connection with such tax proceeding, (iii) RARE shall be entitled to participate in such tax proceeding, at the expense of Seller or any of its Affiliates RARE and (iv) Purchaser shall not settle, compromise, compromise or waive or fail to initiate or pursue abandon any such tax proceeding (or portion thereof) without obtaining the specific prior written consent of Buyer if such settlementthe RARE, compromise, waiver which consent shall not be unreasonably withheld or failure would cause any of Buyer or any of its Affiliates to be liable for Taxes (other than Indemnified Taxes for which Buyer will be entitled to full and complete indemnification by Seller notwithstanding the limitations contained in Section 9.9 and Section 9.10) for which they would not have been liable absent such settlement, compromise, waiver or failure. Buyer shall have the right to participate in such proceeding at its own expense, and shall be entitled to control the disposition of any issue involved in such proceeding which does not affect a potential liability of Seller. Both Buyer and Seller shall be entitled to represent their own interests in light of their responsibilities (including indemnity obligations) for the related Taxes, at their own expense, in any audit or administrative or judicial proceedings involving a Straddle Period. Except as provided in this Section 6.5, the provisions of Article 9, including the provisions therein addressing settlement authority, shall govern the manner in which any Tax audit or administrative or judicial proceeding relating to Taxes is resolveddelayed.