Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice. (b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representative.
Appears in 2 contracts
Sources: Merger Agreement (Vici Properties Inc.), Merger Agreement (Penn National Gaming Inc)
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by Whenever any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, provides notice of an inquiry, audit, examination, proceeding or makes a written assertion of a claim for or dispute regarding, or assessment of, Taxes (a "Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”Claim") for any Pre-Closing Tax Period which Seller is liable or required to provide indemnification under this Agreement, Purchaser shall, if informed of such notice of an inquiry, audit, examination, proceeding, assertion or assessment, inform Seller within fifteen (but for this purpose excluding any Straddle Period15) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedcalendar days; provided, however, that Stockholder Representative shall provide any failure to Buyer Parties (at Buyer Parties’ expense, which expense inform Seller shall not be subject relieve Seller of its obligation to provide the indemnity required hereunder as to such Tax Claim except to the extent that such failure has materially prejudiced Seller's ability to defend such Tax Claim. Seller shall have the right to control any resulting inquiry, audit, examination or proceedings and to determine whether and when to settle any resulting claim, assessment or dispute to the extent such inquiry, audit, examination, proceedings or determinations affect the amount of Taxes for which Seller is liable or required to provide indemnification under Article 7this Agreement (including those attributable to the Straddle Period); provided, however, that (A) reasonable participation rights with respect Seller shall have acknowledged that it is liable to so much of the Purchaser Indemnified Parties for such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties Taxes under Section 6.6(b) (or the Companies applicable portion of Taxes for any Post-Closing Tax such period, in the case of Taxes attributable to the Straddle Period. Stockholder Representative ); (B) Seller shall conduct such proceedings in a commercially reasonable manner; (C) Purchaser, the Company and the Subsidiaries may participate in such proceedings at their own expense; (D) Seller shall not assert any defenses compromise or claims, enter into any settlement ofsettle, or otherwise compromiseagree to compromise or settle, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to Claim without Purchaser's consent (which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheldwithheld or delayed); (E) if Seller does not so elect, delayed Purchaser shall control the prosecution and defense of such Tax Claim, which shall be conducted in a commercially reasonable manner; and (F) if Purchaser so elects, it may override Seller's election to control the prosecution and defense of such Tax Claim, in which case the Purchaser Indemnified Parties shall be deemed to have waived their rights to indemnification for such Tax Claim. Whenever any taxing authority makes a Tax Claim for which Purchaser is liable or conditioned. If Buyer Parties object required to provide indemnification under this Agreement, Seller shall, if informed of such notice of an inquiry, audit, examination, proceeding, assertion or assessment, inform Purchaser within fifteen (15) calendar days; provided, however, that any action that Stockholder Representative proposes failure to take pursuant inform Purchaser shall not relieve Purchaser of its obligation to provide the indemnity required hereunder as to such Tax Claim except to the preceding sentence, Buyer Parties shall, within thirty extent that such failure has materially prejudiced Purchaser's ability to defend such Tax Claim. Purchaser shall have the right to control all proceedings relating to Tax Claims (301) days after delivery from Stockholder Representative of written notice that Seller does not have the right to control under this Section 6.6(e) or (2) that do not relate exclusively to Taxes of the intent Company or the Subsidiaries for Pre-Effective Tax Periods or the Straddle Period; provided, however, that to take the extent a Tax Claim could reasonably be expected to materially affect the amount of Taxes for which Seller is liable under or required to provide indemnification under this Agreement, (1) Purchaser shall conduct such action, notify Stockholder Representative proceedings in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts manner; and (2) Purchaser shall not compromise or settle, or agree to resolve compromise or settle, such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten Tax Claim without Seller's consent (10) days after receipt by Stockholder Representative of such notice, the disputed items which shall not be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeunreasonably withheld or delayed).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Brookdale Senior Living Inc.), Stock Purchase Agreement (Capstead Mortgage Corp)
Contests. (ai) Seller on the one hand, and Buyer Parties and or Parent on the Companies other, shall promptly forward to Stockholder Representative all written notifications and notify the other communications from any Taxing Authority relating to any Tax liability in writing within 30 days or such shorter period as may be required thereby of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure receipt of Buyer Parties or the Companies to deliver such written notice of any pending or threatened Tax examination, audit or other administrative or judicial proceeding (a "Tax Contest") that could reasonably be expected to result in such period shall not affect a liability for Taxes of another party. If the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter recipient of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure notice of a Tax Contest fails to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expensenotice to such other party, which and the recipient is entitled to indemnification for Taxes under this Agreement, it shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard entitled to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) indemnification for any Pre-Closing Taxes arising in connection with such Tax Period (but for this purpose excluding any Straddle Period) Contest, but only to the extent extent, if any, that such failure or delay shall not have adversely affected the Stockholders have an obligation with respect indemnifying party's ability to defend against, settle, or satisfy any action, suit or proceeding against it, or any damage, loss, claim, or demand for which the indemnified party is entitled to indemnification hereunder.
(ii) If a Tax Contest relates to any Taxes for which Seller is liable in full hereunder, Seller shall at its expense control the defense and settlement of such Tax Matter under Article 7Contest. If such Tax Contest relates to any Taxes for which Buyer or Parent is liable in full hereunder, Buyer or Parent shall at its own expense, control the defense and settlement of such Tax Contest. A party not in control of the defense shall have the right to observe the conduct of any Tax Contest at its expense, including through recovery against the Indemnification Escrow Account, its own counsel and other professional experts. If a Tax Contest relates to Taxes for which has not expired Seller and either Buyer or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties Parent or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not both may be liable hereunder, the parties that may have such liability shall jointly control the defense and settlement of such Tax Contest.
(iii) To the extent that an issue raised in any Tax Contest controlled by one party or jointly controlled could materially affect the liability for Taxes of another party, the controlling party shall not, and no party in the case of joint control shall, enter into a final settlement without the prior written consent of Parentthe other party or parties, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object Where a party withholds its consent to any action final settlement, that Stockholder Representative proposes to take pursuant to party may continue or initiate further proceedings, at its own expense, and the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice liability of the intent party or parties that wished to take settle (as between the consenting and the non consenting parties) shall not exceed the liability that would have resulted from the proposed final settlement including interest, additions to Tax, and penalties that have accrued at that time, and the non consenting party or parties shall indemnify the consenting party or parties for such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeTaxes.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Headwaters Inc), Asset Purchase Agreement (Headwaters Inc)
Contests. (a) Buyer Parties Whenever any Governmental Authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which Sellers are or may be liable under this Agreement, Purchaser shall, if informed of such an assertion, inform the relevant Seller within ten business days, and the Companies relevant Seller shall promptly forward have the right to Stockholder Representative all written notifications control any resulting proceedings and other communications from to determine whether and when to settle any such claim, assessment or dispute to the extent such proceedings or determinations affect the amount of Taxes for which such Seller may be liable under this Agreement, except that Purchaser shall have the right to consent, which consent will not be unreasonably withheld or delayed, to any settlement to the extent such proceedings or settlement materially affect the amount of Taxes for which Purchaser may be liable under this Agreement. If Purchaser fails to provide such notice and such failure shall materially prejudice a Seller's ability to defend such assessment, then the Seller's indemnification obligations shall be null and void with regard to such assessment. Whenever any Taxing Authority relating to any Tax liability asserts a claim, makes an assessment or otherwise disputes the amount of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period Taxes for which Purchaser is liable under this Agreement Seller shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter if informed of such written notification or other communication except an assertion, inform Purchaser within 10 business days, and, in any case, Purchaser shall have the right to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect resulting proceedings and to Taxes, determine whether and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only when to the extent the Stockholders have an obligation with respect to settle any such Tax Matter under Article 7claim, including through recovery against assessment or dispute, except that Sellers shall have the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide right to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parentconsent, which consent shall not be unreasonably withheldwithheld or delayed, delayed to any settlement to the extent such proceedings settlement affects the amount of Taxes for which Sellers are or conditionedmay be liable under this Agreement. If Buyer Parties object Seller fails to any action that Stockholder Representative proposes provide such notice and such failure materially prejudices Purchaser's ability to take pursuant to defend such assessment, then the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection Purchasers indemnification obligation shall be duly delivered, Buyer Parties null and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant void with regard to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeassessment.
Appears in 2 contracts
Sources: Acquisition Agreement, Acquisition Agreement (McLeodusa Inc)
Contests. (a) Buyer Parties and the Companies shall promptly forward If an audit is commenced or any other claim is made by any Tax authority with respect to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any a Tax liability of the Companies with respect to a Pre-Closing Tax Period Company or any actions with respect to the same. The failure of its Subsidiaries for which Verizon, GTE or Seller could be liable under Section 5.3(b) (a "TAX CONTEST"), Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter promptly notify Seller of such written notification Tax Contest (unless Verizon, GTE or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced Seller previously was notified in writing directly by the failure to provide such written notice.
(b) (i) Stockholder Representative (relevant Tax authority). If Seller so requests in writing and at Stockholders’ Seller's expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the DeductibleBuyer (1) shall control cause the relevant entity (Buyer, the Company, any Subsidiary or any successor) to contest such Tax Contest on audit or examination by appropriate claim for refund or credit of Taxes or in a related administrative or judicial proceeding which Seller in its sole and absolute discretion chooses to direct such entity to pursue, and (2) shall permit Seller, at its expense, to control the prosecution and settlement of any taxing authority such audit or any other refund claim or related administrative or judicial or administrative proceeding with respect to Taxessuch Tax Contest; and, and contestwhere deemed necessary by Seller, resolve and defend against any assessment for additional Taxes, notice Buyer shall cause the relevant entity to authorize by appropriate powers of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only attorney such persons as Seller shall designate to the extent the Stockholders have an obligation represent such entity with respect to such audit or refund claim or related administrative or judicial proceeding and to settle or otherwise resolve any such Tax Matter proceeding; PROVIDED that in any case under Article 7this subsection, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative (x) Seller shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereundernot, without the prior written consent of ParentBuyer, which consent shall not be unreasonably withheld, delayed accept any proposed adjustment or conditionedenter into any settlement or agreement in compromise or otherwise dispose of any such audit or refund claim or related administrative or judicial proceeding in a manner that would purport to bind the Company if such actions would materially and adversely affect the Tax liability or Tax basis, depreciation, amortization, useful lives, net operating losses, or similar Tax items of Buyer, the Company or any of its Subsidiaries for Taxable periods or portions thereof ending after the Closing Date and (y) Seller shall keep Buyer informed as to the progress of any audit or refund claim or related administrative or judicial proceeding which Seller has taken control of and Buyer shall have the right to consult with Seller during such proceedings at its own expense. If Buyer Parties object shall further execute and deliver, or cause to be executed and delivered, to Seller or its designee all instruments and documents reasonably requested by Seller to implement the provisions of this subsection. Any refund of Taxes obtained by Buyer or the affected entity with respect to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty Tax period (30or portion thereof) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity Company ending on or before the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection Closing Date shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate paid promptly to Seller in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10accordance with Section 5.3(c) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativehereof.
Appears in 2 contracts
Sources: Agreement of Merger (Tsi Finance Inc), Stock Purchase Agreement (Tsi Finance Inc)
Contests. (a) Buyer Parties and After the Companies Closing, the Purchaser shall -------- promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to notify the Shareholders in writing of the commencement of any Tax liability audit or administrative or judicial proceeding or of any demand or claim on the Companies with respect to a Pre-Closing Tax Period Purchaser, the Company or any actions with respect Company Subsidiary which, if determined adversely to the sametaxpayer or after the lapse of time, is likely to give rise to grounds for indemnification by the Shareholders. The failure of Buyer Parties or the Companies to deliver such written Such notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except contain factual information (to the extent that known to the Indemnifying Party is materially Purchaser) describing the asserted Tax liability in reasonable detail and irrevocably prejudiced shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If the Purchaser fails to give the Shareholders prompt notice of an asserted Tax liability, then (i) if the Shareholders are precluded by the failure to provide give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, the Shareholders shall not have any obligation to indemnify for any loss arising out of such written noticeasserted Tax liability, and (ii) if the Shareholders are not so precluded from contesting, but such failure to give prompt notice results in a detriment to the Shareholders, any amount which the Shareholders are otherwise required to pay the Purchaser with respect to such liability shall be reduced by the amount of such detriment.
(b) (i) Stockholder Representative (Except as indicated in the last sentence of this Section 8.04(b), the Shareholders may elect to direct, through counsel of their own choosing and at Stockholders’ their own expense, which shall be paid solely from the Stockholder Representative Expense Amount first any audit, claim for refund and then from the Indemnification Escrow Account without regard to the Deductible) shall control administrative or judicial proceeding involving any audit or examination by any taxing authority or any other judicial or administrative proceeding asserted liability with respect to Taxeswhich indemnity may be sought from the Shareholders (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If the Shareholders elect to direct the Contest of an asserted Tax ------- liability, they shall, within 30 calendar days of receipt of the notice of asserted Tax liability, notify the Purchaser of their intent to do so, and the Purchaser shall cooperate and shall cause the Company and the Company Subsidiaries to cooperate, at the Shareholders' expense, in each phase of such Contest. If the Shareholders elect not to direct the Contest, fail to notify the Purchaser of their election as herein provided or contest their indemnification obligation, the Purchaser may pay, compromise or contest, resolve and defend against at its own expense, such asserted liability. However, in such case, the Purchaser may not settle or compromise any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes asserted liability over the objection of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedShareholders; provided, however, that Stockholder Representative shall provide consent to Buyer Parties (at Buyer Parties’ expense, which expense settlement or compromise shall not be subject to indemnification under Article 7) reasonable participation rights -------- ------- unreasonably withheld. In any event, both the Purchaser and the Shareholders may participate, at their own expense, in the Contest. If a Contest includes both an asserted liability with respect to so much which an indemnity may be sought from the Shareholders and an asserted liability for which no such indemnity may be sought, the foregoing provisions of this Section 8.04(b) shall apply only to such Tax Matter that is reasonably likely to affect portion of the Tax Contest as involves the asserted liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as with respect to which an indemnity may be sought from the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeShareholders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pogo Producing Co), Merger Agreement (Pogo Producing Co)
Contests. (a) Buyer Parties and After the Companies Closing Date, the Acquirors shall promptly forward notify THCI in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Acquirors or any of their respective Affiliates which, if determined adversely to Stockholder Representative all written notifications the taxpayer or after the lapse of time, would be grounds for indemnification under Section 7.06. Such notice shall contain factual information (to the extent known to the Acquirors or the relevant Affiliate) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other communications document received from any Taxing Authority relating Tax authority in respect of any such asserted Tax liability. If the Acquirors fail to any give THCI prompt notice of an asserted Tax liability of as required by this Section 7.07 and if THCI is precluded by the Companies with respect failure to a Pre-Closing give prompt notice from contesting the asserted Tax Period or any actions with respect to liability in both the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period administrative and judicial forums, then THCI shall not affect the rights of an Indemnified Party under Article 7 with respect have any obligation to indemnify for any Tax or Damage directly or indirectly related to the subject matter loss arising out of such written notification or other communication except asserted Tax liability to the extent that the Indemnifying Party is materially and irrevocably THCI was prejudiced by the failure to provide as a result of such written noticefailure.
(b) (i) Stockholder Representative (THCI may elect to direct, through counsel of its own choosing and at Stockholders’ its own expense, which shall be paid solely from the Stockholder Representative Expense Amount first any audit, claim for refund and then from the Indemnification Escrow Account without regard to the Deductible) shall control administrative or judicial proceeding involving any audit or examination by any taxing authority or any other judicial or administrative proceeding asserted liability with respect to Taxeswhich indemnity may be sought under Section 7.06 relating to any taxable period ending on or before the Closing Date (any such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "CONTEST"). If THCI elects to direct a Contest, it shall within 30 calendar days of receipt of the notice of asserted Tax liability notify the Acquirors in writing of its intent to do so, and the Acquirors shall cooperate and shall cause their respective Affiliates or their respective successors to cooperate, at THCI's expense, in each phase of such Contest. In each such case, neither the Acquirors nor any of their respective Affiliates may settle or compromise any asserted Tax liability over the objection of THCI. If THCI elects not to direct the Contest or fails to notify the Acquiror of its election as herein provided, the Acquirors or any of their respective Affiliates may contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ their own expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the asserted Tax liability of Buyer Parties or the Companies for any Post-Closing pay or compromise such asserted Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeat THCI's expense.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Westfield America Inc), Asset Purchase Agreement (Rouse Company)
Contests. If a notice of deficiency, proposed adjustment, assessment, audit, examination or other administrative or court proceeding, suit, dispute or other claim (aa “Tax Contest”) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from be delivered, sent, commenced, or initiated to, by or against Purchaser or any Taxing Authority relating to any Tax liability of the Companies by any taxing authority with respect to Taxes that results in or may result in a Pre-Closing Tax Period or any actions with respect Loss for which indemnification may be claimed from Sellers under this Agreement, Purchaser shall promptly notify Sellers in writing of such Tax Contest; provided that the failure to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period so notify Sellers shall not affect the rights relieve Sellers of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication their indemnification obligations hereunder, except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the such failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholdersprejudices Sellers’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes defense of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only Contest. Sellers shall have the sole right to represent the extent the Stockholders have an obligation Companies’ interests and to employ counsel of their choice at their expense with respect to any such Tax Matter Contest; and Purchaser shall cause each of the applicable Companies to execute any powers of attorney or other documents or forms necessary in order to allow Sellers to control such Tax Contest and to settle any such Tax Contest; provided that in the case of any Tax Contest relating to any Tax for any Straddle Period, Purchaser and Sellers shall each be entitled to participate at their own expense in such Tax Contest to the extent it relates to a Tax for which such party bears liability pursuant to Section 9.1. No party may settle or otherwise dispose of any Tax Contest for which another party may have a liability under Article 7, including through recovery against Section 9.1 or which settlement could adversely affect either party in Tax periods for which such party is responsible or for which another party may be entitled to a refund or credit under Section 9.1 without the Indemnification Escrow Accountprior written consent of such other party, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall consent will not be subject unreasonably withheld, conditioned or delayed. In the event that Sellers do not take control of a Tax Contest that they have the right to indemnification under Article 7) reasonable participation rights with respect control hereunder, Purchaser and the Companies shall keep Sellers reasonably informed as to so much the progress of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative Contest and shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any other disposition of the such Tax Matter that reasonably could adversely affect Contest prior to receiving the liability written consent of Buyer Parties or the Companies for any TaxesSellers, as to which the Stockholders would consent will not be liable hereunderunreasonably withheld, conditioned or delayed. In no event, without the prior written consent of ParentPLC, which consent shall not be unreasonably withheld, delayed conditioned or conditioned. If Buyer Parties object to delayed, shall Purchaser or the Companies grant an extension of any action that Stockholder Representative proposes to take pursuant applicable statute of limitations in respect of any Tax period ending prior to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual Closing Date or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeStraddle Period.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Protective Life Insurance Co), Stock and Asset Purchase Agreement (Protective Life Corp)
Contests. If any claim shall be made against GE Capital or if any proceeding shall be commenced against GE Capital (aincluding by written notice of such proceeding) Buyer Parties and the Companies for any Collateral Taxes which Aladdin Gaming is obligated to pay pursuant to this Section 4, or if GE Capital shall reasonably determine that any Collateral Taxes which Aladdin Gaming may have an obligation to pay under this Section 4 may be payable, GE Capital shall promptly forward (and in any event within 30 days) notify Aladdin Gaming in writing (provided that failure to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period so notify shall not affect the alter GE Capital's rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication Section 4 except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent that) such failure precludes or materially adversely affects the Stockholders have an obligation ability to conduct a contest of such Collateral Taxes) and shall not take any action with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has claim without written consent of Aladdin Gaming (and such consent shall not expired be unreasonably withheld or lapsedunreasonably delayed) for 30 days after receipt of such notice by Aladdin Gaming; provided, however, that Stockholder Representative in the case of any such claim or proceeding, if GE Capital shall provide be required by law or regulation to Buyer Parties (at Buyer Parties’ expensetake action prior to the end of such 30 day period, which expense GE Capital shall in such notice to Aladdin Gaming, so inform Aladdin Gaming, and GE Capital shall not be subject to indemnification under Article 7) reasonable participation rights take any action with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties claim, proceeding or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Collateral Taxes without the prior written consent of Parent, which Aladdin Gaming (such consent shall not be unreasonably withheld, delayed withheld or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes unreasonably delayed) for 10 days after the receipt of such notice by Aladdin Gaming unless GE Capital shall be required by law or regulation to take pursuant action prior to the preceding sentenceend of such 10 day period. Provided that no Event of Default has occurred and is continuing, Buyer Parties shallAladdin Gaming shall be entitled for a period of 30 days from receipt of such notice from GE Capital (or such shorter period as GE Capital has notified Aladdin Gaming is required by law or regulation for GE Capital to commence such contest), within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative request in writing that it so objectsGE Capital contest the imposition of such Collateral Tax, specifying with particularity at Aladdin Gaming's expense. In its sole discretion, GE Capital shall either (i) control the objectionable action and stating contest, acting through counsel reasonably acceptable to Aladdin Gaming, or (ii) take all reasonable steps to enable Aladdin Gaming to control the specific factual or legal basis for any such objectioncontest. If a notice of objection The party controlling the contest shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate consult in good faith with the other party and use their commercially reasonable efforts its counsel with respect to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative the contest of such noticeclaim for Collateral Taxes (or claim for refund) but the decision regarding what actions to be taken shall be made by the controlling party in its sole judgment; provided, however, that if GE Capital is the controlling party and Aladdin Gaming recommends the acceptance of a settlement offer made by the relevant taxing authority and GE Capital rejects the settlement offer, then the portion of the Collateral Taxes at issue in the claim which are payable by Aladdin Gaming shall not exceed the amount which would have been owed if the settlement offer would have been accepted. In addition, the disputed items controlling party shall be resolved keep the noncontrolling party reasonably informed as to the progress of the contest and shall provide the noncontrolling party with a copy of (or appropriate excepts from) any reports or claims issued by the Dispute Advisor relevant taxing authority to the controlling party thereof, in connection with such claim or contest thereof. Notwithstanding anything contained herein to the contrary, GE Capital shall not be required to contest (and Aladdin Gaming shall not be permitted to contest) a claim with respect to the imposition of Collateral Taxes if GE Capital waives its right to payment from Aladdin Gaming for such Collateral Taxes (and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant claim with respect to such procedures year or any other taxable year the contest of which is materially adversely affected as it may require. The costs, fees and expenses a result of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativesuch waiver).
Appears in 2 contracts
Sources: Facilities Agreement (Aladdin Capital Corp), Facilities Agreement (Aladdin Gaming Enterprises Inc)
Contests. (a) Buyer Parties and After the Companies Closing, Purchaser shall promptly forward notify the Seller in writing of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Purchaser, its Affiliates, or the Company or the Company Subsidiaries which, if determined adversely to Stockholder Representative all written notifications the taxpayer or after the lapse of time, could result in any Tax liability for the Seller or be grounds for indemnification by the Seller or the Principal Seller Members under Article IX. Such notice shall contain factual information (to the extent known to Purchaser, its Affiliates, or the Company) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other communications document received from any Taxing Authority relating in respect of any such asserted Tax liability. If Purchaser fails to any give the Seller prompt notice of an asserted Tax liability of as required by this Section 7.03, then the Companies with respect to a Pre-Closing Tax Period or any actions with respect to Seller and the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period Principal Seller Members shall not affect the rights of an Indemnified Party under Article 7 with respect have any obligation to indemnify for any Tax or Damage directly or indirectly related to the subject matter loss arising out of such written notification or other communication except asserted Tax liability, but only to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide give such written noticenotice results in a detriment to the Seller and Principal Seller Members.
(b) In the case of a Tax audit or administrative or judicial proceeding (ia “Contest”) Stockholder Representative (that relates to taxable periods ending on or before the Closing Date, the Seller shall have the sole right, at Stockholders’ the Seller’s expense, which shall be paid solely from to control the Stockholder Representative Expense Amount first conduct of such Contest. With respect to Straddle Periods, the Seller may elect to direct and then from the Indemnification Escrow Account without regard to the Deductible) shall control control, through counsel of its own choosing, any audit or examination by Contest involving any taxing authority or any other judicial or administrative proceeding asserted Tax liability with respect to Taxeswhich indemnity may be sought from the Seller or the Principal Seller Members pursuant to Article IX.
(c) If the Seller elects to direct a Contest, the Seller shall within thirty (30) calendar days of receipt of the notice of asserted Tax liability notify Purchaser of its intent to do so, and contestPurchaser shall cooperate and shall cause the Company to fully cooperate, resolve and defend against at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, Purchaser or the Company may assume control of such Contest (at Purchaser’s expense). However, in such case, neither Purchaser nor the Company may settle or compromise any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes asserted liability without the prior written consent of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedSeller; provided, however, that Stockholder Representative shall provide consent to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties settlement or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent compromise shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to the Seller does not direct and control any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such noticeContest, the disputed items Seller may participate, at the Seller’s expense, in such Contest.
(d) Purchaser, the Seller and the Principal Seller Members agree to cooperate, and Purchaser agrees to cause the Company and the Company Subsidiaries to cooperate, in the defense against or compromise of any claim in any Contest.
(e) In the event of a conflict between the procedures set forth in this Section 7.03 and those set forth in Article IX, the procedures of this Section 7.03 shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativegovern.
Appears in 1 contract
Contests. (aA) If the Buyer Parties and or the Companies Company receives written notice of any pending or threatened audit or other examination by any Governmental Authority, or any judicial or administrative proceedings relating to Taxes (each, a “Tax Contest”) that would reasonably be expected to result in Losses that are indemnifiable under this Agreement, the Buyer shall promptly forward to Stockholder notify the Sellers’ Representative. If the Sellers’ Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such Seller receives written notice of a Tax Contest that would reasonably be expected to result in Losses that are indemnifiable under this Agreement, such period Party shall promptly notify the Buyer. In each case within this clause (vi), the failure or delay in delivering such notice shall not affect the rights relieve a Party of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication its obligations hereunder except and only to the extent that the Indemnifying Party is materially forfeits rights or defenses by reason of such failure. Such written notice shall describe the Tax Contest and irrevocably prejudiced shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the failure to provide such written noticeIndemnified Party.
(bB) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid If such Tax Contest relates solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to any Taxable period ending on or prior to the Deductible) shall control any audit or examination by any taxing authority Closing Date, and not to the Straddle Period or any other judicial or administrative proceeding with respect post-Closing period, the Sellers’ Representative shall have the right (but not the obligation) to Taxes, and contest, resolve and defend against any assessment for additional Taxes, be exercised within ten (10) Business Days following its receipt of the written notice of such Tax deficiency or other adjustment Contest, by delivering written notice to the Buyer, to assume and thereafter conduct and control the defense of Taxes such Tax Contest (with counsel of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to Sellers’ Representative’s choice). For so long as the extent Sellers’ Representative is conducting and controlling such defense the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Sellers’ Representative shall provide Buyer with notice of material developments in such Tax Contest and the Buyer shall have the right, but not the obligation, to Buyer Parties (participate in such defense with separate counsel of its choosing at Buyer Partiesits sole cost and expense. The Sellers’ expense, which expense Representative shall not be subject permitted to indemnification under Article 7) reasonable participation rights with respect consent to so much the entry of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties any judgment or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any of such Tax Matter that reasonably could Contest which may and adversely affect impact the liability of Buyer Parties (or the Companies Company for any Taxes, as to which a Taxable period ending after the Stockholders would not be liable hereunder, Closing Date or the Tax attributes of the Company) without the prior written consent of Parent, which consent shall the Buyer (not to be unreasonably withheld, delayed conditioned, or conditioneddelayed).
(C) Unless and until the Sellers’ Representative assumes the defense of such Tax Contest, the Buyer may defend against such Tax Contest in any manner it may reasonably deem appropriate (with counsel of the Buyer’s choice), in which case the Sellers’ Representative (I) shall cooperate with the Buyer in such defense and make available to the Buyer and its Representatives all witnesses, pertinent records, materials, and information in or under the Sellers’ Representative’s possession or control relating thereto as may be reasonably requested by the Buyer, and (II) shall have the right, but not the obligation, to participate in such defense with separate counsel of its choosing at its sole cost and expense. If The conduct of such defense by the Buyer Parties object shall not be construed to be a waiver of the Buyer’s right to indemnification with respect to such Tax Contest.
(D) For the avoidance of doubt, the procedures relating to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection Tax Contest shall be duly delivered, Buyer Parties governed by this clause (vi) and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt not by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeSection 7(d)(ii).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (XL Fleet Corp.)
Contests. (aA) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from If any Taxing Governmental Authority relating to asserts a Tax Claim in respect of any Tax liability of the Companies with respect to a Pre-Closing or the Designated Subsidiaries, then the party hereto first receiving notice of such Tax Period or any actions with respect Claim promptly shall provide written notice thereof to the same. other party or parties hereto.
(B) The failure of Buyer Parties Stockholders shall, at their own expense, have the right to control, defend, settle, compromise, or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 prosecute any audit, examination, investigation, hearing, or other proceeding (collectively, “Tax Proceeding”) with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies or the Designated Subsidiaries for any taxable period that ends on or prior to the Closing Date the subject of which is a claim for Taxes for which the Stockholders are responsible pursuant to Section 6 (each, a “Tax Matter”) for any Stockholder Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedContest”); provided, however, that (i) the Stockholders shall keep Acquiror duly informed of any such Stockholder Representative Pre-Closing Contest, (ii) Acquiror shall provide be entitled to Buyer Parties receive copies of all correspondence and documents relating to such Stockholder Pre-Closing Contest, (iii) Acquiror shall have the right to participate in such Stockholder Pre-Closing Contest and to employ counsel and other advisors of Acquiror’s choice, at Buyer Parties’ Acquiror’s expense, and (iv) the Stockholders shall consult with Acquiror in good faith before taking any significant action in connection with such Stockholder Pre-Closing Contest. If the Stockholders elect not to direct a Stockholder Pre-Closing Contest, Acquiror or its Affiliates may assume control of such Tax Proceeding. In such event, Acquiror shall keep the Stockholders informed on a prompt basis regarding the progress and substantive aspects of any Stockholder Pre-Closing Contest. Notwithstanding the foregoing, in respect of any Stockholder Pre-Closing Contest, (A) if (i) the Indemnification Basket has not been attained or exceeded (not taking into account the amount of the claim for Taxes which expense is the subject of such Stockholder Pre-Closing Contest), or (ii) if (x) the amount of the claim for Taxes which is the subject of such Stockholder Pre-Closing Contest exceeds or is expected to exceed (y) the product of the Value Per Share and the number of the shares of Acquiror Common Stock remaining in the Escrow Fund at the time of such Stockholder Pre-Closing Contest arises, then (I) such Stockholder Pre-Closing Contest shall not be subject governed by the foregoing provisions of this Section 5(d)(iii)(B) and instead Acquiror and the Stockholders shall jointly have the right to indemnification under Article 7) reasonable participation rights with respect to so much of control, defend, settle, compromise, or prosecute such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any PostStockholder Pre-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representative.Contest,
Appears in 1 contract
Sources: Merger Agreement (Ventas Inc)
Contests. (a) Buyer Parties and After the Companies Closing, Purchaser shall promptly forward to Stockholder Representative all notify Seller in writing of any written notifications and other communications from notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of Purchaser or of any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect and each Company Subsidiary which, if determined adversely to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party taxpayer, would be grounds for indemnification under this Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedVIII; provided, however, that Stockholder Representative shall provide a failure to Buyer Parties (at Buyer Parties’ expense, which expense shall give such notice will not be subject affect Purchaser's right to indemnification under this Article 7except to the extent, if any, that, but for such failure, Seller could have avoided all or a portion of the Tax liability in question.
(b) reasonable participation rights In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that Seller acknowledges in writing its liability under this Agreement to hold Purchaser, the Companies and each Company Subsidiary harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to periods ending on or before the Closing Date (or, in the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 8.02(b) to the portion of such year ending on or before the Closing Date), Seller shall have the right at its expense to participate in and control the conduct of such audit or proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which Seller has acknowledged its liability; Purchaser also may participate in any such audit or proceeding and, if Seller does not assume the defense of any such audit or proceeding, Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days prior written notice to Seller setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which Seller has acknowledged its liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which Purchaser would be liable, Purchaser shall have the right, at its expense, to control the audit or proceeding with respect to so much of such Tax Matter that is reasonably likely the latter issues.
(i) With respect to affect the Tax liability of Buyer Parties issues relating to a potential adjustment for which both Seller (as evidenced by its acknowledgment under this Section) and Purchaser or the Companies or any Company Subsidiary could be liable, (a) each party may participate in the audit or proceeding, and (b) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any Post-Closing Tax Period. Stockholder Representative issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VIII by Purchaser and Seller.
(ii) Neither Purchaser, the Companies, any Company Subsidiary, nor Seller shall not assert any defenses or claims, enter into any settlement of, compromise or otherwise compromise, agree to settle any such claim pursuant to any Tax Matter that reasonably could audit or proceeding which would adversely affect the liability of Buyer Parties other party for such year or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, a subsequent year without the prior written consent of Parentthe other party, which consent shall may not be unreasonably withheld. Purchaser and Seller agree to cooperate, delayed and Purchaser agrees to cause the Company and the Subsidiaries to cooperate, in the defense against or conditioned. If Buyer Parties object to compromise of any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative claim in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual any audit or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeproceeding.
Appears in 1 contract
Contests. (a) Buyer Parties and After the Companies date of the Effective Time, Parent shall promptly forward to Stockholder notify the Shareholders' Representative all in writing of any written notifications and other communications from any Taxing Authority relating to any Tax liability notice of a proposed adjustment or claim in an audit or administrative or judicial proceeding involving Parent or the Companies with respect to a Pre-Closing Tax Period Company or any actions with respect the Subsidiary which, if determined adversely to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party taxpayer, would be grounds for indemnification under this Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedVIII; provided, however, that Stockholder a failure to give such notice will not affect Parent's right to indemnification hereunder except to the extent, if any, that, but for such failure, the Shareholders could have avoided the Tax liability in question.
(b) In the case of an audit or administrative or judicial proceeding that relates to taxable periods ending on or before the date of the Effective Time, provided that the Shareholders' Representative on behalf of all Shareholders acknowledges in writing the Shareholders' liability under this Agreement to hold Parent and the Company and the Subsidiary harmless against the full amount of any adjustment that may be made as a result of such audit or proceeding that relates to taxable periods ending on or before the date of the Effective Time, the Shareholders' Representative shall provide have the right at the Shareholders' expense to Buyer Parties (at Buyer Parties’ expense, participate in and control the conduct of such audit or proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which expense shall the Shareholders' Representative has acknowledged the Shareholders' liability and the issue underlying the proposed adjustment if resolved would not be subject to indemnification under Article 7) reasonable participation rights materially prejudice the Company or the Subsidiary from taking a contrary position for any period ending after the date of the Effective Time with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Periodrecurring issue. Stockholder The Shareholders' Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, keep Parent informed of the progress of any such Tax Matter audit or proceeding and if it appears in the reasonable discretion of Parent that reasonably could such audit or proceeding may adversely affect Parent, Parent also may participate in any such audit or proceeding at its expense. If the liability Shareholders' Representative does not assume the defense of Buyer Parties any such audit or proceeding, Parent may defend the Companies for any Taxessame in such manner as it may deem appropriate at its expense, including, but not limited to, settling such audit or proceeding after giving five days prior written notice to the Shareholders' Representative setting forth the terms and conditions of settlement. In the event that a potential adjustment as to which the Stockholders Shareholders' Representative has acknowledged the Shareholders' liability is present in the same proceeding as a potential adjustment for which Parent would be liable, Parent shall have the right at its expense, to control the audit or proceeding with respect to the latter potential adjustment.
(c) With respect to an audit or proceeding that relates to a potential adjustment for which both the Shareholders (as evidenced by their acknowledgement under this Section 8.04) and Parent or the Company or the Subsidiary could be liable, or which involves a taxable period ending after the Effective Time but includes the Effective Time (and the Shareholders' Representative has acknowledged in writing the Shareholders' portion of the tax liability under Section 8.01(b)) or an issue that recurs for any period ending after the date of the Effective Time (whether or not the subject of audit at such time) that the Shareholders' Representative does not control pursuant to Section 8.04(b) above, (i) each of the Shareholders' Representative and Parent may participate in the audit or proceeding at their respective expense, and (ii) the audit or proceeding shall be liable hereundercontrolled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in situation in which separate issues are otherwise controlled hereunder by Parent and the Shareholders' Representative.
(d) Except as otherwise provided in Section 8.04(b) above, neither Parent nor the Shareholders' Representative shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the prior written consent of Parentthe other party, which consent shall may not be unreasonably withheld. Parent and the Shareholders agree to cooperate, delayed and Parent agrees to cause the Company and the Subsidiary to cooperate, in the defense against or conditioned. If Buyer Parties object to compromise of any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative claim in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual any audit or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeproceeding.
Appears in 1 contract
Contests. (a) Buyer Parties and the Companies shall promptly forward If an audit is commenced, an Adjustment is proposed or any other claim is made by any tax authority with respect to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any a Tax liability of the Companies with respect to a Pre-Closing Tax Period Company or any actions with respect of its Subsidiaries which is allocated to GTE or Seller under Section 5.3(b), or if an Adjustment is proposed that could give Seller the same. The failure of right to receive a payment pursuant to Section 5.3(e), Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter promptly notify Seller of such written notification audit or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced such proposed Adjustment or such claim (unless GTE or Seller previously was notified directly by the failure to provide such written notice.
(b) (i) Stockholder Representative (relevant tax authority). If Seller so requests and at Stockholders’ Seller's expense, which Buyer shall be paid solely from cause the Stockholder Representative Expense Amount first and then from relevant entity (Buyer, the Indemnification Escrow Account without regard Company, any of its Subsidiaries or any successor) to the Deductible) shall control any contest such claim on audit or examination by appropriate claim for refund or credit of Taxes or in a related administrative or judicial proceeding which Seller in its sole and absolute discretion, chooses to direct such entity to pursue, and shall permit Seller, at its expense, to control the prosecution and settlement of any taxing authority such audit or any other refund claim or related administrative or judicial or administrative proceeding with respect to Taxesthose matters which could affect the Tax liability of GTE or Seller, and contestincluding any liability hereunder, resolve and defend against any assessment for additional Taxesor their right to payment; and, notice where deemed necessary by Seller, Buyer shall cause the relevant entity to authorize by appropriate powers of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only attorney such persons as Seller shall designate to the extent the Stockholders have an obligation represent such entity with respect to such audit or refund claim or related administrative or judicial proceeding and to settle or otherwise resolve any such Tax Matter under Article 7proceeding. Buyer shall further execute and deliver, including through recovery against or cause to be executed and delivered, to Seller or its designee all instruments and documents reasonably requested by Seller to implement the Indemnification Escrow Accountprovisions of this Section 5.3(e). Any refund of Taxes obtained by Buyer or the affected entity shall be paid promptly to Seller. In the event an adverse determination may result in each party having responsibility for any Taxes, each party shall be entitled to fully participate in that portion of the proceedings relating to the Taxes with respect to which has not expired or lapsedit may incur liability hereunder; provided, however, that Stockholder Representative the party responsible for the greater amount of the Tax liability at issue shall provide to Buyer Parties (at Buyer Parties’ expenseultimately control the proceeding, which expense shall not be subject to indemnification under Article 7) exercising such control in a reasonable participation rights fashion. If an indemnified party has knowledge of an asserted Tax liability with respect to so much a matter for which it is to be indemnified hereunder and such party fails to provide the indemnifying party prompt notice of such asserted Tax Matter that liability, then (i) if the indemnifying party is reasonably likely to affect precluded from contesting the asserted Tax liability of Buyer Parties or the Companies for in any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, forum as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice a result of the intent failure to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such give prompt notice, the disputed items indemnifying party shall have no obligation to indemnify the indemnified party for Taxes arising out of such asserted Tax liability and (ii) if the indemnifying party is not precluded from contesting the asserted Tax liability in any forum, but such failure to provide prompt notice results in a monetary detriment to the indemnifying party, then any amount which the indemnifying party is otherwise required to pay the indemnified party pursuant to this Agreement shall be resolved reduced by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days amount of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativedetriment.
Appears in 1 contract
Contests. (a) After the Closing, Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to notify Seller in writing of the commencement of any Tax liability audit or administrative or judicial proceeding or of any demand or claim on Buyer or the Companies with respect to a Pre-Closing Tax Period or any actions with respect Company Parties which, if determined adversely to the sametaxpayer, would be grounds for indemnification under this Article XII. The failure of Buyer Parties or the Companies to deliver such written Such notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except contain factual information (to the extent that known to Buyer or any Company Party) describing the Indemnifying Party asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability. If Buyer fails to give Seller prompt notice of an asserted Tax liability as required by this Section 12.5, then (i) if Seller is materially and irrevocably prejudiced precluded by the failure to provide give prompt notice from contesting the asserted Tax liability in either the administrative or the judicial forum, then Seller shall not have any obligation to indemnify for any Tax or Contest Expense arising out of such written noticeasserted Tax liability, and (ii) if Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to Seller, then any amount which Seller is otherwise required to pay Buyer pursuant to Section 12.1 with respect to such liability shall be reduced by the amount of such detriment, if calculable.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard Prior to the Deductible) Closing Date, Seller shall control any audit audit, claim for refund or examination by administrative or judicial proceeding involving any taxing authority asserted Tax liability (any such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "Contest"). After the Closing Date, in the case of a Contest that relates to a Tax Return (or any other judicial item relating thereto or administrative proceeding with respect to Taxesreported thereon) for a Taxable period ending on or before the Closing Date, Seller shall at its expense undertake and control the conduct of such Contest, and contestfor all Taxable periods straddling or beginning on the day after the Closing Date, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any Buyer shall control such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedContests; provided, however, that Stockholder Representative Buyer shall provide control a contest solely as to any portion of the Tax Return of CPLP for the taxable year ending on the Closing Date, the resolution of which could cause a payment to be made to Triarc pursuant to the Tax Indemnity Provisions of the Triarc Purchase Agreement. If Seller does not assume the defense of any such Contest for a Taxable period ending on or before the Closing Date, Buyer Parties may defend the same in such 66 81 manner as it may deem appropriate, including settling such Contest (subject, however, to Section 12.5(d) if such settlement would adversely affect Seller) after giving ten days" prior written notice to Seller setting forth the terms and conditions of settlement. In the event of a Contest covered by the second sentence of this paragraph that involves issues relating to a potential adjustment for which Seller has liability that also involves separate issues relating to a potential adjustment for which Buyer would be liable, Buyer shall have the right, at Buyer Parties’ its expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights control the Contest but only with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of latter issues.
(c) Neither Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative nor Seller shall not assert any defenses or claims, enter into any settlement of, compromise or otherwise compromise, agree to settle any such Tax Matter that reasonably could claim pursuant to any Contest which would adversely affect the liability of Buyer Parties other party for such year or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, a subsequent or prior year without the prior written consent of Parentthe other party, which consent shall may not be unreasonably withheld, delayed conditioned or conditioned. If Buyer Parties object delayed.
(d) Notwithstanding any other provision of this Section 12.5, the defense of any Third Party Claim in respect of which indemnity may be sought under Section 10.3 shall be subject to any action that Stockholder Representative proposes to take pursuant all obligations imposed by the Triarc Purchase Agreement with respect to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative Contest of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeThird Party Claim.
Appears in 1 contract
Contests. (a) Buyer Parties Each of Purchaser, the Company and the Companies Included Subsidiaries, on the one hand, and Seller, on the other hand, (the "Recipient") shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability notify the chief tax officer of the Companies with respect other party in writing within 15 days of receipt by the Recipient of written notice of any pending or threatened audit, deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim ("Tax Claim") that could affect the liability for Taxes of such other party, and such notice shall provide the details of such Tax Claim. If the Recipient fails to a Pre-Closing Tax Period or any actions with respect give such prompt notice to the same. The failure of Buyer Parties or other party, the Companies to deliver such written notice in such period Recipient shall not affect the rights of an Indemnified Party under Article 7 be entitled to indemnification for any Taxes arising in connection with respect to any such Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except Claim if and to the extent that the Indemnifying Party is such failure to give notice materially and irrevocably prejudiced by adversely affects the failure to provide such written noticeother party.
(b) (i) Stockholder Representative (Seller shall have the sole right to represent and control the Acquired Companies' interests in any Tax Claim relating to taxable periods ending on or before the Closing Date and to employ counsel of its choice at Stockholders’ its expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative Seller shall provide have no right to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect represent the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, -------- ------- Acquired Companies' interest in any such Tax Matter that reasonably could adversely affect Claim unless Seller shall have first notified Purchaser in writing of Seller's intention to do so within twenty (20) days of notification of the Tax Claim by Purchaser. Purchaser may participate in such Tax Claim at its own expense. In the case of a Split Tax Period, Seller shall be entitled to participate at its expense in any Tax Claim relating in any part to Taxes attributable to the Pre-Closing Period and, with the prior written consent of Purchaser, at Seller's sole expense, may assume the control of such entire Tax Claim. None of Purchaser, any of its Affiliates, or any Acquired Company may settle or otherwise dispose of any Tax Claim for which Seller may have a liability of Buyer Parties under this Agreement, or the Companies for any Taxes, as to which the Stockholders would not be liable hereundermay result in an increase in Seller's liability under this Agreement, without the prior written consent of ParentSeller, which consent shall may not be unreasonably withheld, delayed unless Purchaser and the Acquired Companies fully indemnify Seller in writing with respect to such liability in a manner satisfactory to Seller. Neither Seller nor any of its affiliates may settle or conditioned. If Buyer Parties object otherwise dispose of any Tax Claim for which Purchaser or the Acquired Companies may have a liability under this Agreement, or which may result in an increase in Purchaser's or the Acquired Companies' liability under this Agreement, without the prior written consent of Purchaser, which consent may not be unreasonably withheld, unless Seller fully indemnifies Purchaser and the Acquired Companies in writing with respect to such liability in a manner satisfactory to Purchaser.
(c) Seller shall use its reasonable best efforts to minimize any interest, penalties, and other additions to Taxes that may be payable with respect to any action that Stockholder Representative proposes Tax Claim for which the Seller has the right to take pursuant to represent and control the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeAcquired Companies' interests.
Appears in 1 contract
Sources: Merger Agreement (GSL Corp)
Contests. (a) Buyer Parties and After the Companies date of the Effective Time, Parent shall promptly forward to Stockholder notify the Equityholders’ Representative all in writing of any written notifications and other communications from any Taxing Authority relating to any Tax liability notice of a proposed adjustment or claim in an audit or administrative or judicial proceeding involving Parent or the Companies with respect to a Pre-Closing Tax Period Company or any actions with respect its Subsidiaries which, if determined adversely to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party taxpayer, would be grounds for indemnification under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedIX; provided, however, that Stockholder Representative shall provide a failure to Buyer Parties (at Buyer Parties’ expense, which expense shall give such notice will not be subject affect Parent's right to indemnification thereunder except to the extent, if any, that, but for such failure, the Equity Holders could have avoided the Tax liability in question.
(b) In the case of an audit or administrative or judicial proceeding that relates to taxable periods ending on or before the date of the Effective Time, provided that the Equityholders’ Representative on behalf of all Equity Holders acknowledges in writing the Equity Holders’ liability under Article 7) reasonable participation rights this Agreement to hold Parent and the Surviving Corporation and its Subsidiaries harmless against the full amount of any adjustment that may be made as a result of such audit or proceeding, and provided further that such audit or proceeding relates solely to a potential adjustment for which the Equityholders’ Representative has acknowledged the Equity Holders’ liability and the issue underlying the proposed adjustment if resolved would not materially prejudice the Surviving Corporation or its Subsidiaries from taking a contrary position for any period ending after the date of the Effective Time with respect to so much such recurring issue, the Equityholders’ Representative shall have the right at the Equity Holders’ expense to participate in and control the conduct of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties audit or the Companies for any Post-Closing Tax Periodproceeding. Stockholder The Equityholders’ Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, keep Parent informed of the progress of any such Tax Matter audit or proceeding, and Parent also may participate in any such audit or proceeding at its expense. If the Equityholders’ Representative does not assume the defense of any such audit or proceeding, Parent may defend the same in such manner as it may deem appropriate at its expense, including, but not limited to, settling such audit or proceeding.
(c) With respect to an audit or proceeding that reasonably could adversely affect relates to a potential adjustment for which the liability of Buyer Parties or the Companies for any Taxes, Equity Holders are liable and as to which the Stockholders would second proviso set forth in Section 10.3(b) is not be liable hereundersatisfied, without (i) the prior written consent of ParentEquityholders’ Representative may participate in the audit or proceeding at its expense provided that the first proviso set forth in Section 10.3(b) is satisfied, which consent shall not be unreasonably withheld, delayed and (ii) the audit or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection proceeding shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt controlled by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeParent.
Appears in 1 contract
Contests. (a) Buyer Parties and If any Governmental Authority issues to the Companies shall promptly forward Company a written notice of its intent to Stockholder Representative all audit, examine or conduct a proceeding, a written notifications and other communications from any Taxing Authority relating notice of its determination of an objection to an assessment with respect to Taxes or Tax Returns of the Company for a Pre-Closing Tax Period or a Straddle Period, or a written notice or inquiry with respect to any Taxes or the filing of a Tax liability Return for a Pre-Closing Tax Period or a Straddle Period (a “Tax Claim”), Buyer shall notify Seller of its receipt of such Tax Claim within ten (10) Business Days following receipt, provided however, that the failure of the Companies Buyer to notify Seller of its receipt of a Tax Claim within ten (10) Business Days shall not relieve the Seller from liability pursuant to Section 6.03(a) except to the extent the Seller is materially prejudiced as a consequence of such failure. Seller shall control any Tax Claim and any other matter with respect to a Pre-Closing Tax Period or of the Company (a “Seller’s Tax Contest”), provided that Buyer, at its sole cost and expense, shall have the right to participate in any actions Seller’s Tax Contest that does not involve income Taxes and provided further that the Seller shall provide the Buyer with respect a copy of the final resolution of any Seller’s Tax Contest and any other information reasonably requested by Buyer concerning any Seller’s Tax Contest, provided that such requests relate solely to information of the sameCompany. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies Claim that is not a Seller’s Tax Contest (each, a “Buyer’s Tax MatterContest”) for ), provided that Seller, at its sole cost and expense, shall have the right to participate in any Pre-Closing Buyer’s Tax Contest that relates to a Straddle Period (but for this purpose excluding any Straddle Period) but only Return. The party controlling a Tax Claim described in the preceding sentence shall not agree to the extent the Stockholders have an obligation with respect to any settle such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of Claim if such Tax Matter that is reasonably likely to settlement could affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, other party without the prior written consent of Parentsuch other party, which consent shall not be unreasonably withheld, delayed conditioned or conditioned. If Buyer Parties object delayed, provided that if any party (the “First Party”) shall reasonably withhold consent for a settlement, the other party (the “Second Party”) shall be entitled to any action that Stockholder Representative proposes to take pursuant to enter into such settlement without the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice consent of the intent First Party so long as the Second Party agrees to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity indemnify the objectionable action and stating the specific factual or legal basis First Party for any such objection. If adverse Tax consequences suffered by the First Party as a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative result of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativesettlement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Contests. (a) Buyer Parties The defense of proceedings for the assessment as to any taxable period or portion thereof ending on or before the Deconsolidation Date as to any Subgroup or Subgroup Member of any Tax deficiencies and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from prosecution of any Taxing Authority relating to proceedings for the assertion of any Tax liability of the Companies refund claims which arise with respect to a Pre-Closing Tax Period or which relate to any actions with respect member of the TCI Affiliated Group, whether or not attributable to such Subgroup or Subgroup Member, and regardless of whether such tax period or portion thereof occurs before or after the same. The failure of Buyer Parties or the Companies to deliver such written notice Effective Date, shall be conducted by TCI in such period manner, including through deferral, compromise or settlement, as TCI in its sole discretion shall not affect determine, provided that TCI will consult with and keep any affected Subgroup or Subgroup Member informed of the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter status of such written notification matters and TCI will not compromise or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against settle any assessment for additional Taxes, notice of Tax deficiency which such Subgroup or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders Subgroup Member would have an indemnification obligation with respect hereunder or any tax refund claim attributable to any such Tax Matter under Article 7Subgroup or Subgroup Member without the consent of such Subgroup or Subgroup Member, including through recovery against as the Indemnification Escrow Accountcase may be, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object any Subgroup or Subgroup Member shall consent to any action that Stockholder Representative proposes proposed compromise or settlement, then such Subgroup or Subgroup Member as a consequence waives any and all present and future claims against TCI relating to take pursuant to such compromise or settlement between TCI and the preceding sentenceIRS or other taxing authority, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative regardless of written notice whether such compromise or settlement allegedly improperly causes an overstatement of the intent liability of such Subgroup or Subgroup Member to take TCI or another member of the TCI Affiliated Group, or whether such actionSubgroup or Subgroup Member could have reached a more favorable agreement with the IRS or other taxing authority on a separate company basis. If any affected Subgroup or Subgroup Member shall not consent to such compromise or settlement, notify Stockholder Representative TCI shall renegotiate such agreement, in writing cooperation with such Subgroup or Subgroup Member, and at the expense of such Subgroup or Subgroup Member. Any compromise or settlement which results from such renegotiation will not be entered into without the consent of both TCI and such Subgroup or Subgroup Member. TCI will bear all costs and expenses associated with the defense of such deficiency proceedings or the prosecution of such refund claims, except that it so objectsthe affected Subgroup or Subgroup Member shall bear the portion, specifying if any, of such costs and expenses provided for in Section F.1. hereof. TCI and such Subgroup or Subgroup Member will execute and deliver such waivers, consents, petitions, refund claims, complaints, powers of attorney and other documents which may be necessary or appropriate in connection with particularity the objectionable action and stating the specific factual defense, prosecution or legal basis for resolution of any such objection. If a notice proceedings for assessment of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeincome tax deficiencies or refund claims.
Appears in 1 contract
Sources: Tax Sharing Agreement (Tele Communications Inc /Co/)
Contests. (a) If, after the Closing Date, any Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from Indemnified Party receives any Taxing Authority notice, letter, correspondence, claim or decree relating to any Tax liability Taxes of the Companies with respect to a Pre-Closing Tax Period Company or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely its Subsidiaries from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax MatterNotice”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any and, upon receipt of such Tax Matter Notice, believes it has suffered or potentially could suffer any Taxes or Adverse Consequences for which it would be entitled to indemnification under Article 7Section 5.8(a), including through recovery against Buyer shall, or shall cause the Indemnification Escrow AccountCompany or its Subsidiaries to, which has not expired or lapsedpromptly deliver such Tax Notice to Seller; provided, however, that Stockholder Representative the failure of Buyer to provide the Tax Notice to Seller shall not affect the indemnification rights of any Buyer Indemnified Party pursuant to Section 5.8(a) unless Seller is prejudiced by the failure to deliver such Tax Notice (which prejudice shall include, but not be limited to, the inability of Buyer or Seller, as the case may be, to defend the matter(s) set forth in such Tax Notice). Seller shall have the right to handle, defend, conduct and control any Tax audit or other proceeding that relates to such Tax Notice and shall provide written notice to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject of its election to indemnification under Article 7) reasonable participation rights with respect to so much of defend such Tax Matter that is reasonably likely audit or proceeding within fifteen (15) business days of its receipt of the relevant Tax Notice, and Buyer shall have the right to affect participate in such Tax audit or proceeding at its own expense. Seller shall keep Buyer informed regarding the Tax liability progress and substantive aspects of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter audit or proceeding. Seller shall also have the right to compromise or settle any such Tax audit or proceeding that reasonably could adversely affect it has elected to control pursuant to the liability of Buyer Parties or the Companies for any Taxespreceding sentence, as subject to which the Stockholders would not be liable hereunder, without the prior written consent of ParentBuyer’s consent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representative.unreasonably
Appears in 1 contract
Contests. (a) Buyer Parties and In the Companies shall promptly forward event any Governmental Authority determines that any Participant’s receipt of payments or property constitutes income that is subject to Stockholder Representative all written notifications and other communications taxation, Operating Agent upon notification from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the DeductibleParticipant(s) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxesnotify Interconnection Customer, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shallin writing, within thirty (30) days after delivery from Stockholder Representative Calendar Days of receiving notification of such determination by a Governmental Authority. Upon the timely written notice request by Interconnection Customer and at Interconnection Customer's sole expense, Operating Agent or affected Participant(s), as permissible, may appeal, protest, seek abatement of, or otherwise oppose such determination. Upon Interconnection Customer's written request and sole expense, Operating Agent or applicable Participants, as permissible, may file a claim for refund with respect to any taxes paid under this Article 5.17, whether or not it has received such a determination. The affected Participant(s) reserve the right to make all decisions with regard to the prosecution of such appeal, protest, abatement or other contest, including the selection of counsel and compromise or settlement of the intent to take claim, but such actionParticipant(s) through Operating Agent shall keep Interconnection Customer informed, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate consider in good faith suggestions from Interconnection Customer about the conduct of the contest, and use their commercially reasonable efforts shall reasonably permit Interconnection Customer or Interconnection Customer’s representative to resolve such itemsattend contest proceedings. If Buyer Parties and Stockholder Representative are unable Interconnection Customer shall pay to reach such agreement within ten (10) days after receipt Operating Agent on a periodic basis, as invoiced by Stockholder Representative of such noticeOperating Agent, the disputed items affected Participant’s documented reasonable costs of prosecuting such appeal, protest, abatement or other contest. Any such payments received by Operating Agent shall be resolved distributed to the affected Participants based on such Participant’s documented reasonable costs. At any time during the contest, the affected Participant(s) may agree to a settlement either with Interconnection Customer's consent or after obtaining written advice from nationally-recognized tax counsel, selected, by the Dispute Advisor and any determination affected Participant(s) but reasonably acceptable to Interconnection Customer, that the proposed settlement represents a reasonable settlement given the hazards of litigation. Interconnection Customer's obligation shall be based on the amount of the settlement agreed to by Interconnection Customer, or if a higher amount, so much of the settlement that is supported by the Dispute Advisor written advice from nationally-recognized tax counsel selected under the terms of the preceding sentence. The settlement amount shall be final. The Dispute Advisor shall resolve calculated on a fully grossed-up basis to cover any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses related cost consequences of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativecurrent tax liability. Any settlement without Interconnection Customer's consent or such written advice will relieve Interconnection Customer from any obligation to indemnify the Participant(s) for the tax at issue in the contest.
Appears in 1 contract
Contests. (a) Buyer Parties Each of Purchaser, the Company and the Companies Included Subsidiaries, on the one hand, and Seller, on the other hand, (the "Recipient") shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability notify the chief tax officer of the Companies with respect other party in writing within 15 days of receipt by the Recipient of written notice of any pending or threatened audit, deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim ("Tax Claim") that could affect the liability for Taxes of such other party, and such notice shall provide the details of such Tax Claim. If the Recipient fails to a Pre-Closing Tax Period or any actions with respect give such prompt notice to the same. The failure of Buyer Parties or other party, the Companies to deliver such written notice in such period Recipient shall not affect the rights of an Indemnified Party under Article 7 be entitled to indemnification for any Taxes arising in connection with respect to any such Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except Claim if and to the extent that the Indemnifying Party is such failure to give notice materially and irrevocably prejudiced by adversely affects the failure to provide such written noticeother party.
(b) Seller shall have the sole right to represent and control the Acquired Companies' interests in any Tax Claim relating to taxable periods ending on or before the Closing Date and to employ counsel of its choice at its expense; PROVIDED, HOWEVER, that Seller shall have no right to represent the Acquired Companies' interest in any such Tax Claim unless Seller shall have first notified Purchaser in writing of Seller's intention to do so within twenty (i20) Stockholder Representative (days of notification of the Tax Claim by Purchaser. Purchaser may participate in such Tax Claim at Stockholders’ its own expense. In the case of a Split Tax Period, which Seller shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard entitled to participate at its expense in any Tax Claim relating in any part to Taxes attributable to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to and, with the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7prior written consent of Purchaser, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ Seller's sole expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much may assume the control of such entire Tax Matter that is reasonably likely to affect the Tax liability Claim. None of Buyer Parties or the Companies for Purchaser, any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement ofof its Affiliates, or any Acquired Company may settle or otherwise compromisedispose of any Tax Claim for which Seller may have a liability under this Agreement, any such Tax Matter that reasonably could adversely affect the or which may result in an increase in Seller's liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunderunder this Agreement, without the prior written consent of ParentSeller, which consent shall may not be unreasonably withheld, delayed unless Purchaser and the Acquired Companies fully indemnify Seller in writing with respect to such liability in a manner satisfactory to Seller. Neither Seller nor any of its affiliates may settle or conditioned. If Buyer Parties object otherwise dispose of any Tax Claim for which Purchaser or the Acquired Companies may have a liability under this Agreement, or which may result in an increase in Purchaser's or the Acquired Companies' liability under this Agreement, without the prior written consent of Purchaser, which consent may not be unreasonably withheld, unless Seller fully indemnifies Purchaser and the Acquired Companies in writing with respect to such liability in a manner satisfactory to Purchaser.
(c) Seller shall use its reasonable best efforts to minimize any interest, penalties, and other additions to Taxes that may be payable with respect to any action that Stockholder Representative proposes Tax Claim for which the Seller has the right to take pursuant to represent and control the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeAcquired Companies' interests.
Appears in 1 contract
Contests. (a) Buyer Parties and After the Companies Closing, Purchaser shall promptly forward to Stockholder Representative all notify Seller or Seller shall promptly notify Purchaser in writing of any written notifications and other communications from any Taxing Authority relating to any Tax liability notice of the Companies with respect to a Pre-Closing Tax Period proposed assessment or any actions with respect claim in a contest ("Contest") of Purchaser or Seller which, if determined adversely to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party taxpayer, would be grounds for indemnification under this Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice6.
(b) (i) Stockholder Representative (at Stockholders’ expenseFor all Consolidated Returns for any group of which Seller or any of its Affiliates is a member, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) Seller shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to all such Contests in connection therewith. Seller will not settle any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, Contest in a manner which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could would adversely affect the liability of Buyer Parties or Company after the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Closing Date without the prior written consent of ParentPurchaser. Prior to the Closing Date, Seller shall control all Contests relating to Company. After the Closing Date, in the case of a Contest that relates to a non-Consolidated Return (or any item relating thereto or reported thereon) for a Taxable Period ending on or before the Closing Date, Seller shall have the right at its expense to participate in and control the conduct of such Contest. Purchaser shall control Contests relating to Company for all other Taxable Periods. If Seller does not assume the defense of any such Contest for a Taxable Period ending on or before the Closing Date, Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such contest after giving ten days prior written notice to Seller setting forth the terms and conditions of settlement. In the event of a Contest controlled by Seller that involves issues relating to a potential adjustment for which Seller has liability, required to be dealt with in a proceeding that also involves separate issues relating to a potential adjustment for which Purchaser would be liable, Purchaser shall have the right, at its expense, to control the Contest but only with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment relating to non-Consolidated Returns (or any item relating thereto or reported thereon) for which both Seller and Purchaser could be liable, (i) each party may participate in the Contest at its own cost or expense, and (ii) the Contest shall be controlled by Purchaser; provided, however, Purchaser may not settle any Contest without the prior consent of Seller if such settlement would result in an increase in the indemnification obligation of Seller pursuant to this Agreement.
(d) Neither Purchaser nor Seller shall enter into any compromise or agree to settle any claim pursuant to any Contest which would adversely affect the other party for such year or a subsequent year without the written consent of the other party, which consent shall may not be unreasonably withheld. Purchaser and Seller agree to cooperate, delayed and Purchaser agrees to cause the Company to cooperate, in the defense against or conditioned. If Buyer Parties object to compromise of any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative claim in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeContest.
Appears in 1 contract
Contests. (aThe Buyer shall promptly notify the Sellers' Representative in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company which, if determined adversely to the taxpayer, would be grounds for indemnification under this Section 6.4; PROVIDED, HOWEVER, that a failure to give such notice will not affect the Buyer's right to indemnification hereunder, except to the extent, if any, that, but for such failure, the Sellers' Representative could have avoided the Tax liability in question. In the case of an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, PROVIDED that within 30 days after the Sellers' Representative receives the written notice from the Buyer required under this Section 6.4(k) and prior to taking any action with respect to such audit or administrative or judicial proceeding, the Sellers' Representative acknowledges in writing the Sellers' liability under this Section 6.4 to hold the Buyer Parties and the Companies Company harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding, the Sellers' Representative shall promptly forward have the right at his, her or its own expense to Stockholder control the conduct of such audit or proceeding; PROVIDED, HOWEVER, that the Sellers' Representative all shall not settle or otherwise compromise any issue or matter without the Buyer's prior written notifications and other communications from any Taxing Authority relating to any consent if such issue or matter will have a material affect on the Tax liability of the Companies with respect to Buyer or the Company for a Prepost-Closing Tax Period taxable year or any actions with respect to the sameperiod (or for an Interim Period). The failure Buyer also may participate in any such audit or proceeding at its own expense and, if the Sellers' Representative does not assume the defense of any such audit or proceeding, the Buyer Parties may, without any effect to its or the Companies Company's right to deliver such written notice indemnification under this Section 6.4, defend the same in such period manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding. Except as provided otherwise in this Section 6.4(k), the Buyer shall not affect the rights of an Indemnified Party under Article 7 with respect to control at its own expense any Tax or Damage directly or indirectly and all audit, administrative and judicial proceedings related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties Company or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Company's Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Russell-Stanley Holdings Inc)
Contests. (a) Buyer Parties and After the Companies Closing, the Purchaser shall promptly forward to Stockholder Representative all notify the Seller in writing of any written notifications and other communications from any Taxing Authority relating to any Tax liability notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Companies with respect to a Pre-Closing Tax Period or any actions with respect Purchaser which, if determined adversely to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party taxpayer, would be grounds for indemnification under this Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedXII; provided, however, that Stockholder Representative shall provide a failure to Buyer Parties (at Buyer Parties’ expense, which expense shall give such notice will not be subject affect the Purchaser's right to indemnification under Article 7this Agreement except to the extent, if any, that, but for such failure, the Seller could have avoided all or a portion of the Tax liability in question.
(b) reasonable participation rights In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that the Seller acknowledges in writing its responsibility under this Agreement to hold the Purchaser harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to periods ending on or before the Closing Date (or, in the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 12.01 (b) to the portion of such year ending on or before the Closing Date), the Seller shall have the right at its expense to participate in and control the conduct of such audit or proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which the Seller has acknowledged its liability; the Purchaser also may participate in any such audit or proceeding and, if the Seller does not assume the defense of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Seller setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Seller has acknowledged its liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or proceeding with respect to so much the latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Seller (as evidenced by its acknowledgment under this Section 12.04) and the Purchaser could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of such the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax Matter periods. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that is reasonably likely to affect must be decided jointly (in particular, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article XII by the Tax liability of Buyer Parties or Purchaser and the Companies for any Post-Closing Tax Period. Stockholder Representative Seller.
(d) Neither the Purchaser nor the Seller shall not assert any defenses or claims, enter into any settlement of, compromise or otherwise compromise, agree to settle any such claim pursuant to any Tax Matter that reasonably could audit or proceeding which would adversely affect the liability of Buyer Parties other party for such year or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, a subsequent year without the prior written consent of Parentthe other party, which consent shall may not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve Purchaser and the Seller agree to cooperate in the defense against or compromise of any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeclaim in any audit or proceeding.
Appears in 1 contract
Sources: Acquisition Agreement (Sylvan Learning Systems Inc)
Contests. (a) After the Closing Date, Buyer Parties and shall notify Seller in writing of the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to commencement of any Tax liability audit or administrative or judicial proceeding or of the Companies with respect to a Pre-Closing Tax Period any demand or any actions with respect claim on Buyer or Company which, if determined adversely to the same. The failure taxpayer or after the lapse of Buyer Parties time, would be grounds for indemnification under Section 11.1, within fifteen (15) days after such commencement or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter receipt of such written notification demand or other communication except claim. Such notice to Seller shall contain factual information (to the extent that known to Buyer or Company) describing the Indemnifying Party asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax authority in respect of any such asserted Tax liability. If Buyer fails to give Seller notice of an asserted Tax liability as required by this Section 11.3, then, if Seller is materially and irrevocably prejudiced precluded by the failure to provide give such written noticenotice from contesting the asserted Tax liability in formal proceedings before either the administrative or judicial forum, then Seller shall not have any obligation to indemnify Buyer or Company for any loss arising out of such asserted Tax liability.
(b) (i) Stockholder Representative (Seller may elect to direct, through counsel of its own choosing and at Stockholders’ its own expense, which shall be paid solely from the Stockholder Representative Expense Amount first any audit, claim for refund and then from the Indemnification Escrow Account without regard to the Deductible) shall control administrative or judicial proceeding involving any audit or examination by any taxing authority or any other judicial or administrative proceeding asserted liability with respect to Taxeswhich indemnity may be sought under Section 11.1 (any such audit, and contest, resolve and defend against any assessment claim for additional Taxes, notice of refund or proceeding relating to an asserted Tax deficiency or other adjustment of Taxes of the Companies (each, liability is referred to herein as a “Tax MatterContest”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed); provided, however, that Stockholder Representative Buyer and Company and their duly appointed representatives shall provide have the right to Buyer Parties (participate in any such Contest, at Buyer Parties’ their own expense, which expense to the extent that such Contest relates to matters for periods after the Closing Date; and provided, further, that Seller shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect obtain the Tax liability consent of Buyer Parties and Company prior to the resolution or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, of any such Tax Matter that reasonably could adversely affect dispute to the liability of Buyer Parties or extent it relates to matters after the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of ParentClosing Date, which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed. If Buyer Parties object Seller elects to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shalldirect a Contest, within thirty (30) days after delivery from Stockholder Representative receipt of written the notice of the asserted Tax liability, Seller shall notify Buyer of its intent to take do so, and Buyer shall cooperate and shall cause Company or its respective successor or successors to cooperate, at Seller’s expense, in each phase of such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objectionContest. If a notice of objection shall be duly deliveredSeller chooses to direct the Contest, Buyer Parties promptly shall empower and Stockholder Representative shall negotiate in good faith cause Company or its successor to empower (by power of attorney and use their commercially reasonable efforts to resolve such items. If Buyer Parties other documentation as may be necessary and Stockholder Representative are unable to reach appropriate) such agreement within ten (10) days after receipt by Stockholder Representative representatives of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures Seller as it may requiredesignate to represent Buyer or Company or their respective successors in the Contest insofar as the Contest involves an asserted Tax for which Seller may be required to indemnify Buyer or Company under Section 11.1. The costsIf Seller elects not to direct the Contest, fees and expenses fails to notify Buyer of the Dispute Advisor shall be borne equally by its election as herein provided or contests its obligation to indemnify under Section 11.1, Buyer Parties and Stockholder Representativeor Company may pay, compromise or contest, at their own expense, such asserted Tax liability without prejudice to any right of Buyer or Company to indemnification if otherwise entitled thereto hereunder.
Appears in 1 contract
Contests. If any claim shall be made against any Tax Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee (aincluding a written notice of such proceeding) Buyer Parties and for any Imposition as to which the Companies Lessees may have an indemnity obligation pursuant to this SECTION 11.5, or if any Tax Indemnitee shall receive notice that any Imposition to which the Lessees may have an indemnity obligation pursuant to this SECTION 11.5 may be payable, such Tax Indemnitee shall promptly forward (and, in any event, within thirty (30) days) notify the Company, as agent for the Lessees, in writing (PROVIDED that failure to Stockholder Representative all so promptly notify the Company within thirty (30) days shall not alter such Tax Indemnitee's rights under this SECTION 11.5 except to the extent such failure precludes or materially adversely affects the ability to conduct a contest of any indemnified Taxes) and shall not take any action with respect to such claim, proceeding or Imposition without the written notifications consent of the Company, as agent for the Lessees, (such consent not to be unreasonably withheld or unreasonably delayed) for thirty (30) days after the receipt of such notice by the Company or thereafter if the applicable Lessee has commenced to take appropriate action; PROVIDED, HOWEVER, that in the case of any such claim or proceeding, if such Tax Indemnitee shall be required by law or regulation to take action prior to the end of such 30-day period, such Tax Indemnitee shall in such notice to the applicable Lessee, so inform the Company, as agent for the Lessees, and other communications such Tax Indemnitee shall not take any action with respect to such claim, proceeding or Imposition without the consent of the Company, as agent for the Lessees, (such consent not to be unreasonably withheld or unreasonably delayed) for ten (10) days after the receipt of such notice by the Company, or thereafter if the applicable Lessee has commenced to take appropriate action, unless such Tax Indemnitee shall be required by law or regulation to take action prior to the end of such 10-day period. The Company shall be entitled for a period of thirty (30) days from receipt of such notice from such Tax Indemnitee (or such shorter period as such Tax Indemnitee has notified the Lessees is required by law or regulation for such Tax Indemnitee to commence such contest), to request in writing that such Tax Indemnitee contest the imposition of such Tax, at the expense of the applicable Lessee. If (x) such contest can be pursued in the name of the applicable Lessee and independently from any Taxing Authority relating to any other proceeding involving a Tax liability of such Tax Indemnitee for which the Companies applicable Lessee has not agreed to indemnify such Tax Indemnitee, (y) such contest must be pursued in the name of such Tax Indemnitee, but can be pursued independently from any other proceeding involving a Tax liability of such Tax Indemnitee for which the applicable Lessee has not agreed to indemnify such Tax Indemnitee or (z) such Tax Indemnitee so requests, then the applicable Lessee shall be permitted to control the contest of such claim, PROVIDED that in the case of a contest described in CLAUSE (y), if such Tax Indemnitee determines reasonably and in good faith that such contest by the applicable Lessee could have a material adverse impact on the business or operations of such Tax Indemnitee and provides a written explanation to such Lessee of such determination, such Tax Indemnitee may elect to control or reassert control of the contest, and PROVIDED, that by taking control of the contest, the applicable Lessee acknowledges that such Lessee has an indemnification obligation under Section 11.5 for the Imposition ultimately determined to be due by reason of such claim, and PROVIDED, FURTHER, that in determining the application of CLAUSES (x) and (y) above, each Tax Indemnitee shall take any and all reasonable steps to segregate claims (including claims that are part of a single examination or investigation) for any Taxes for which the applicable Lessee indemnifies hereunder from Taxes for which the applicable Lessee is not obligated to indemnify hereunder, so that the applicable Lessee can control the contest of the former. In all other claims requested to be contested by the Company, as agent for the Lessees, such Tax Indemnitee shall control the contest of such claim, acting through counsel reasonably acceptable to the Company, as agent for the Lessees. In no event shall the applicable Lessee be permitted to contest (or such Tax Indemnitee required to contest) any claim, (A) if such Tax Indemnitee provides the applicable Lessee with a legal opinion of counsel reasonably acceptable to the applicable Lessee that such action, suit or proceeding involves a material risk of imposition of criminal liability or will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Property Lien) on any Property or any part of any thereof unless the applicable Lessee shall have posted and maintained a bond or other security satisfactory to the relevant Tax Indemnitee in respect to such risk, (B) if a Lease Event of Default has occurred and is continuing unless the applicable Lessee shall have posted and maintained a bond or other security satisfactory to the relevant Tax Indemnitee in respect of the Taxes subject to such claim and any and all expenses for which the applicable Lessee is responsible hereunder reasonably foreseeable in connection with the contest of such claim, (C) unless the applicable Lessee shall have agreed to pay and shall pay, to such Tax Indemnitee within thirty (30) days of receiving an itemized list thereof, all reasonable out-of-pocket costs, losses and expenses that such Tax Indemnitee may incur in connection with contesting such Imposition including all reasonable legal, accounting and investigatory fees and disbursements, or (D) if such contest shall involve the payment of the Tax prior to the contest, unless the applicable Lessee shall provide to such Tax Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnitee is required to pay (with no additional net after-tax costs to such Tax Indemnitee). In addition for Tax Indemnitee controlled contests and claims contested in the name of such Tax Indemnitee in a public forum, no contest shall be required: (A) unless the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Tax Indemnitee with respect to any period for which the applicable Lessee may be liable to pay an indemnity under this SECTION 11.5(B)) exceeds $10,000 and (B) unless, if requested by such Tax Indemnitee, the applicable Lessee shall have provided to such Tax Indemnitee an opinion of counsel selected by the Company (which may be in-house counsel) that a Pre-Closing reasonable basis exists to contest such claim. In no event shall a Tax Period or any actions Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. The party conducting the contest shall consult in good faith with the other party and its counsel with respect to the samecontest of such claim for Taxes (or claim for refund) but the decisions regarding what actions to be taken shall be made by the controlling party in its sole judgement, PROVIDED, HOWEVER, that if such Tax Indemnitee is the controlling party and the applicable Lessee recommends the acceptance of a settlement offer made by the relevant Governmental Authority and such Tax Indemnitee rejects such settlement offer then the amount for which the applicable Lessee will be required to indemnify such Tax Indemnitee with respect to the Taxes subject to such offer shall not exceed the amount which it would have owed if such settlement offer had been accepted. The failure In addition, the controlling party shall keep the noncontrolling party reasonably informed as to the progress of Buyer Parties the contest, and shall provide the noncontrolling party with a copy of (or appropriate excerpts from) any reports or claims issued by the relevant auditing agents or taxing authority to the controlling party thereof, in connection with such claim or the Companies contest thereof. Each Tax Indemnitee shall at the applicable Lessee's expense supply the applicable Lessee with such information and documents reasonably requested by the Guarantor as are necessary or advisable for the applicable Lessee to deliver such written notice participate in such period any action, suit or proceeding to the extent permitted by this SECTION 11.5(b). Notwithstanding anything in this SECTION 11.5(b) to the contrary, no Tax Indemnitee shall not affect enter into any settlement or other compromise or fail to appeal an adverse ruling (which appeal has been requested in writing by the rights of an Indemnified Party under Article 7 applicable Lessee) with respect to any Tax or Damage directly or indirectly related claim which may be entitled to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for indemnified under this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, SECTION 11.5 without the prior written consent of Parentthe applicable Lessee, which consent such entering into of a settlement or compromise, or such failure to appeal, without such consent, shall constitute a waiver of all rights to indemnification under this SECTION 11.5 with respect to such claim. Notwithstanding anything contained herein to the contrary, a Tax Indemnitee will not be required to contest (and the applicable Lessee shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object permitted to any action that Stockholder Representative proposes to take pursuant contest) a claim with respect to the preceding sentenceimposition of any Tax if such Tax Indemnitee shall waive in writing, Buyer Parties shallin a form acceptable to the Lessees, within thirty its right to indemnification under this SECTION 11.5 with respect to such claim (30) days after delivery from Stockholder Representative and any claim with respect to such year or any other taxable year the contest of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If which is materially adversely affected as a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative result of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativewaiver).
Appears in 1 contract
Sources: Master Lease and Open End Mortgage (Cardinal Health Inc)
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from If notice of any Taxing Authority relating to any Tax liability of the Companies Legal Action with respect to a Pre-Closing Taxes (“Tax Period or any actions with respect Proceeding”) relating to the same. The Seller shall be received by either party for which the other party may reasonably be expected to be liable pursuant to Section 8.05 (a “Tax Claim”), the notified party shall promptly inform the other party in writing of such Tax Claim, provided that the failure of Buyer Parties or the Companies notified party to deliver give the other party such written notice in such period shall not affect relieve the rights failing party of an Indemnified Party its obligations under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication Section 8.05 except to the extent that the Indemnifying Party other party is actually and materially and irrevocably prejudiced by the failure to provide such written noticethereby.
(b) Company shall have the right at its expense to represent the interests of Company or the Seller in any Tax Claim relating exclusively to taxable periods ending on or before the Closing Date, provided that: (i) Stockholder Representative Company shall allow Buyer and its counsel to participate in the defense of any such Tax Proceeding at Buyer’s sole expense; (at Stockholders’ expense, which ii) Company shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding keep Buyer informed with respect to Taxesthe status of any such Tax Proceeding; (iii) if any such Tax Proceeding involves an issue that recurs in taxable periods ending after the Closing Date or otherwise could adversely affect Buyer or the Seller for any taxable period ending after the Closing Date, then Company and Buyer shall jointly control the defense of any such Tax Proceeding, each party shall cooperate with the other party, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency there shall be no settlement or closing or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation agreement with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Proceeding without the prior written consent of Parentthe other party, which consent shall not be unreasonably withheld; and (iv) if Company does not elect to represent the interests of Company or the Seller in any such Tax Proceeding, delayed then Buyer or conditioned. If the Seller may contest such Tax Proceeding and may pay or compromise such Tax Claim with Company’s written consent, which consent shall not be unreasonably withheld.
(c) Buyer Parties object shall represent at its expense the interests of the Seller in any Tax Claim relating to a Straddle Period, provided that: (i) Buyer shall allow Company and its counsel to participate in the defense of any action that Stockholder Representative proposes such Tax Proceeding at Company’s sole expense; (ii) Buyer shall keep Company informed with respect to take the status of any such Tax Proceeding; and (iii) if any such Tax Proceeding involves an issue which is the subject of indemnification by Company pursuant to Section 8.05, then Buyer and Company shall jointly control the preceding sentencedefense of any such Tax Proceeding, Buyer Parties shalleach party shall cooperate with the other party, within thirty (30) days after delivery from Stockholder Representative of written notice and there shall be no settlement or closing or other agreement with respect to such Tax Proceeding without the consent of the intent other party, which consent shall not be unreasonably withheld.
(d) Notwithstanding anything in the Agreement to take such actionthe contrary, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection Company shall be duly deliveredentitled to control in all respects, and neither Buyer Parties and Stockholder Representative shall negotiate in good faith and use nor any of their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items Affiliates shall be resolved by entitled to participate in, any Tax Proceeding with respect to: (i) any Tax Return of Company; or (ii) any Tax Return of a consolidated, combined, affiliated, or unitary group that includes Company or any of its Affiliates (including the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeSeller).
Appears in 1 contract
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder After the Closing, Purchaser shall promptly notify the Seller Representative in writing of any demand, claim or notice received by Purchaser or any Affiliate thereof (at Stockholders’ expense, which shall be paid solely including the Company) from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority Governmental Body or any other judicial Person relating to the commencement of any Tax-related action, audit, claim for refund, or administrative or judicial proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax MatterAction”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent such Tax Action relates to (each, a “Seller Tax Action”) (x) a Pass-Through Income Tax Return for any period (or portion thereof) during which any Seller held an interest in the Stockholders Company or (y) any Tax Action the resolution or outcome of which could result in any Tax or related Liability, damage or loss due or payable by any Seller to any Governmental Body or Purchaser (or any of its Affiliates) pursuant to this Agreement (Section 7.4(h)) (each, an “Other Tax Action”). Such notice shall contain factual information (to the extent known) describing the asserted Tax liability and shall include copies of any notice or other document received from any Governmental Body or any other Person in respect of any such asserted Tax liability.
(ii) The Seller Representative shall have an obligation with the right (at its election and at its own expense and by the counsel and representatives of its own choosing) to control the defense and resolution all Seller Tax Actions by providing written notice to the Purchaser. With respect to any such Seller Tax Matter under Article 7Action controlled by the Seller Representative, including through recovery against (i) the Indemnification Escrow Account, which has Seller Representative may not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such settle any Seller Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Action without the prior written consent of Parent, Purchaser (which consent Purchaser will not be unreasonably withhold, conditioned or delayed), (ii) the Seller Representative will keep Purchaser reasonably informed of all material communications with any Governmental Body, and (iii) with respect to any Seller Tax Action that is an Other Tax Action or which is reasonably likely to result in any Tax imposed directly on the Company, Purchaser (at its sole expense) may passively participate in (but not control or otherwise settle or resolve) such Seller Tax Action. The Seller Representative will have the right to participate (at its sole expense) in any proceeding with respect to Tax Action that Seller Representative does not elect to control pursuant to this Section 7.4(d) or that Seller ceases to control (each, a “Purchaser Controlled Action”). Purchaser shall control the conduct of such Purchaser Controlled Action, but Seller shall have the right to participate in such Purchaser Controlled Action at its own expense and, with the written consent of Purchaser, in Purchaser’s sole discretion, and at its expense, Seller may assume control of the conduct of such Tax Action. Purchaser shall not (and shall not cause or permit) the resolution or settlement of any Purchaser Controlled Action without the prior written consent of the Seller Representative (such consent not to be unreasonably withheld, delayed conditioned or conditioneddelayed). If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant Notwithstanding anything to the preceding sentencecontrary in the foregoing provisions, Buyer Parties shall, if Purchaser fails to assume control of the conduct of any such Purchaser Controlled Action within thirty (30) days after delivery from Stockholder Representative a reasonable period following the receipt by Purchaser of written notice of the intent such Tax Action or fails to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual defend or legal basis for contest any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate Tax Action in good faith and use their commercially reasonable efforts or by appropriate proceeds, the Seller Representative shall have the right (but not the obligation) to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative assume control of such notice, the disputed items Tax Action and shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred able to it pursuant to settle, compromise and/or concede such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeTax Action in its sole discretion.
Appears in 1 contract
Contests. (a) Buyer Parties and After the Companies Closing, Purchaser shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to notify Seller in writing of the commencement of any Tax liability audit or administrative or judicial proceeding or of the Companies with respect to a Pre-Closing Tax Period any demand or any actions with respect claim on A. B. Dick which, if determined adversely to the sametaxpayer or after the lapse of time, would be grounds for indemnification under Section 6.01. The failure of Buyer Parties or the Companies to deliver such written Such notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except contain factual information (to the extent that known to A. B. Dick) describing the Indemnifying Party asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability. If Purchaser fails to give Seller prompt notice of an asserted Tax liability as required by this Section 6.03, then (i) if Seller is materially and irrevocably prejudiced precluded by the failure to provide give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, Seller shall not have any obligation to indemnify for any Loss arising out of such written noticeasserted Tax liability, and (ii) if Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to Seller, any amount which Seller is otherwise required to pay Purchaser pursuant to Section 6.01 with respect to such liability shall be reduced by the amount of such detriment.
(b) (i) Stockholder Representative (Seller may elect to control, through counsel of its own choosing and at Stockholders’ its own expense, which shall be paid solely from the Stockholder Representative Expense Amount first any audit, claim for refund and then from the Indemnification Escrow Account without regard to the Deductible) shall control administrative or judicial proceeding involving any audit or examination by any taxing authority or any other judicial or administrative proceeding asserted liability with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies which indemnity may be sought under Section 6.01 (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7audit, including through recovery against the Indemnification Escrow Account, which has not expired claim for refund or lapsed; provided, however, that Stockholder Representative shall provide proceeding relating to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the an asserted Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, is referred to herein as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioneda "Contest"). If Buyer Parties object Seller elects to any action that Stockholder Representative proposes to take pursuant to the preceding sentencecontrol a Contest, Buyer Parties it shall, within thirty (30) 30 calendar days after delivery from Stockholder Representative of written receipt of the notice of the asserted Tax liability, notify Purchaser of its intent to take do so, and Purchaser shall cooperate and shall cause its Affiliates to cooperate, at the expense of Seller, in each phase of such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objectionContest. If a notice Seller elects not to control the Contest, fails to notify Purchaser of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts its election as herein provided or contests its obligation to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representative.indemnify under Section 6.01,
Appears in 1 contract
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Each Member's Stockholder Representative (at Stockholders’ expensein the case of PCS, which shall be paid solely from IPLLC, and in the Stockholder Representative Expense Amount first case of Kerman, KCI) and then from their duly appointed representatives (collectively, the Indemnification Escrow Account without regard to the Deductible"MEMBER REPRESENTATIVE") shall have the authority to control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxesauthority, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect or relating to any such Tax Matter under Article 7liability of a Member for its Member PRE-CLOSING Periods; PROVIDED, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, howeverHOWEVER, that Stockholder no Member Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereundershall, without the prior written consent of UbiquiTel Parent, which consent shall not be unreasonably withheld, delayed enter into any settlement of any contest or conditionedotherwise compromise any issue that would have a material adverse effect on the Tax benefits of UbiquiTel Parent or the Member for taxable years ending after the CLOSING DATE. If Buyer Parties object UbiquiTel Parent and its duly appointed Representatives shall have the exclusive authority to control any audit or examination by any taxing authority, initiate any claim for refund, amend any Tax Return and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any action liability of a Member for Taxes for any taxable year or other taxable period ending after the CLOSING DATE (a "MEMBER POST-CLOSING PERIOD"); PROVIDED, HOWEVER, that (a) neither UbiquiTel Parent nor its subsidiaries nor any of their duly appointed Representatives shall, without the prior written consent of the Member Representative, enter into any settlement of any contest or otherwise compromise any issue that adversely affects the liability of the Member's Stockholder or Stockholders for any Member PRE-CLOSING Period Taxes, and (b) neither UbiquiTel Parent nor its subsidiaries nor any of their duly appointed representatives shall, without the prior consent of the Member Representative, enter into any settlement of any contest or otherwise compromise any issue that would require payment by such Member Representative's Stockholder Group Indemnitors of any amount under this Agreement unless UbiquiTel Parent shall have waived or caused to be waived for itself and its subsidiaries any right to indemnification for Taxes from such Member Representative's Stockholder Group Indemnitors.
(ii) UbiquiTel Parent agrees to notify in writing the Member Representative proposes of any affected Member within ten business days of receipt of any notice, whether oral or in writing, of any federal, state, local or foreign Tax examinations, claims, settlements, proposed adjustments, or related matters that may affect in any way such Member Representative's Stockholder Group Indemnitors' obligations under this Agreement and shall promptly forward all written notifications and other communications from any Tax authority received by UbiquiTel relating to take pursuant any Tax audit or other proceeding relating to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Tax liability of or with respect to a Member. The failure of UbiquiTel Parent to give the Member Representative of such written notice shall not excuse such Member Representative's Stockholder Group Indemnitors from their obligations under this Agreement with respect to any increased Tax liability directly or indirectly attributable to any such written notification or other communication, unless such failure materially prejudices the ability of the intent Member Representative's Stockholder Group to take defend or dispute such actionexamination, notify Stockholder Representative in writing that it so objectsclaim, specifying with particularity the objectionable action and stating the specific factual settlement, adjustment or legal basis for any such objection. If a notice of objection related matter.
(iii) This Section 11.6(e) shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts subject to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative the provisions of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days Article 12 of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativethis Agreement.
Appears in 1 contract
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from Whenever any Taxing Authority relating to any Tax liability asserts a claim, makes an assessment, or otherwise disputes the amount of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period Taxes for which Sellers are liable under this Agreement, Purchasers shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter upon receipt of such written notification assertion, promptly inform Sellers in writing and Sellers shall have the sole right to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or other communication except dispute to the extent that such proceedings or determinations affect the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment amount of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for which Sellers may be liable under this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedAgreement; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunderthat, without the prior written consent of ParentPurchasers, which consent shall not be unreasonably withheld, delayed Sellers shall not settle any such claim, assessment or conditioneddispute if such settlement would reasonably be expected to adversely affect the Tax liability of Purchasers under this Agreement or the Tax liabilities of the Spine Entities for which Sellers are not obligated to indemnify Purchasers. If Buyer Parties object Whenever any Taxing Authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which Purchasers are liable under this Agreement, Purchasers shall have the right to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or dispute, except to the extent such proceedings affect the amount of Taxes for which Sellers are liable under this Agreement. Whenever any Taxing Authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which both Sellers and Purchasers may be liable: (a) each party may participate in any resulting proceedings; (b) that portion of the proceedings shall be controlled by that party that would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future taxable periods; and (c) Purchasers shall be entitled to take all such action that Stockholder Representative proposes they deem necessary or appropriate to take pursuant protect their confidential information. Sellers shall promptly inform Purchasers of any notice or claim they receive from any Taxing Authority that relates to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice Taxes for which any of the intent to take Spine Entities may be liable and provide Purchasers with a copy of all such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action claims and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativenotices.
Appears in 1 contract
Contests. (a) Buyer Parties Whenever any taxing authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which Seller is liable under this Agreement, Seller shall have the right to control any resulting proceedings and the Companies shall promptly forward to Stockholder Representative all written notifications determine whether and other communications from when to settle any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period such claim, assessment or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication dispute, except to the extent that such proceeding affects the Indemnifying Party amount of Taxes for which Purchaser is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by liable under this Agreement. Whenever any taxing authority asserts a claim, makes an assessment or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment otherwise disputes the amount of Taxes of for which Purchaser is liable under this Agreement, Purchaser shall have the Companies (eachright to control any resulting proceedings and to determine whether and when to settle any such claim, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only assessment or dispute, except to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to proceedings affect the Tax liability amount of Buyer Parties Taxes for which Seller is liable under this Agreement. Notwithstanding the foregoing, neither Seller nor Purchaser, as the case may be, shall be entitled to settle, either administratively or after the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromisecommencement of litigation, any such Tax Matter that reasonably could claim for Taxes which would adversely affect the liability for Taxes of Buyer Parties the other party or either Company for which the other party is liable (including, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the Companies for any Taxes, as reduction of loss or credit carryforwards) to which the Stockholders extent such settlement would not be liable hereunder, have a material adverse effect on the other party without the prior written consent of Parentthe other party. Such consent shall not be unreasonably withheld, and shall not be necessary to the extent that the party from which consent would normally be required has been indemnified by the other party against the effects of any such settlement. With respect to claims for Taxes attributable to taxable periods beginning on or before and ending after the Closing Date, the party with the greatest potential liability for Taxes (either directly or by reason of Section 4.2(b)) with respect to such claim (the "CONTROLLING PARTY") shall control the defense of such claim. The other party (the "NON-CONTROLLING PARTY") shall be entitled to participate at its expense in the defense of any claim for Taxes for a year or period ending after the Closing Date which may be the subject of indemnification by the Non-Controlling Party pursuant to Section 4.2(b) and, with the written consent of the Controlling Party, and at its sole expense, may assume the entire defense of such tax claim. Neither the Controlling Party nor either Company may agree to settle any tax claim for the portion of the year or period ending on the Closing Date which may be the subject of indemnification by the Non-Controlling Party under Section 4.2(b) without the prior written consent of the Non-Controlling Party, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representative.
Appears in 1 contract
Contests. (a) Buyer Parties In the event a claim shall be made by the IRS in writing that, if successful, would result in a Loss for which the Facility Sublessee could be required to indemnify the Owner Participant, the Owner Participant hereby agrees promptly to notify the Facility Sublessee in writing of such claim and (except as otherwise provided below) agrees to contest such claim (or cause the Companies Facility Lessor to contest such claim) (including, without limitation, the appeal of any judicial determination in respect of such claim); PROVIDED, HOWEVER, that:
(i) within 30 days after notice of such claim by the Owner Participant to the Facility Sublessee, the Facility Sublessee shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability deliver in writing a request that such claim be contested;
(ii) Oglethorpe shall, at the commencement of the Companies contest and before each level of judicial proceedings, have delivered to the Owner Participant, at the Facility Sublessee's sole expense, a written opinion of independent tax counsel selected by the Owner Participant and reasonably satisfactory to Oglethorpe to the effect that there is a Reasonable Basis for contesting such action, or proposed action, by the IRS (or in the case of an appeal of an adverse judicial decision, the Facility Sublessee shall have furnished the Owner Participant with an opinion from such independent tax counsel, at Facility Sublessee's sole expense, to the effect that it is more likely than not that such determination will be reversed or substantially modified upon appeal in a manner favorable to the Owner Participant);
(iii) the anticipated amount of indemnification payments that would be payable with respect to a Pre-Closing Tax Period all claims raised in the same audit (together with the amount of all similar and logically related claims that have been or could be raised in any actions other current or potential future audit of the Owner Participant with respect to the same. The failure of Buyer Parties Undivided Interest) equals or exceeds $100,000 (or $250,000 in the Companies to deliver such written notice in such period shall not affect the rights case of an Indemnified Party under Article 7 appeal of a judicial decision) in the aggregate;
(iv) the Facility Sublessee shall have agreed in writing to pay (and shall pay on demand) to the Owner Participant all reasonable costs and expenses that the Owner Participant shall incur in connection with contesting such claim, including attorneys', accountants' and other professional fees and disbursements;
(v) the Owner Participant may, at its sole option, either pay the tax claimed and s▇▇ for a refund or contest the claim in any permissible forum considering, however, in good faith such requests as the Facility Sublessee and its counsel shall make concerning the most appropriate forum in which to proceed and other related matters;
(vi) if the Owner Participant shall choose to pay the tax claimed and s▇▇ for a refund, the Facility Sublessee shall advance to the Owner Participant on an interest-free basis and with no additional net after-tax cost to the Owner Participant sufficient funds to pay the tax and interest, penalties and additions to tax payable with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except thereto (to the extent such amount is indemnified against pursuant to Section 4 of this Agreement);
(vii) no Payment Default, Bankruptcy Default or Event of Default under the Facility Lease, or Sublease Payment Default, Sublease Bankruptcy Default or Sublease Event of Default shall have occurred and be continuing;
(viii) the Facility Sublessee shall acknowledge in writing its liability to indemnify the Owner Participant under this Agreement in respect of such claim if the contest is not successful; PROVIDED that such acknowledgment of liability will not be binding if the contest is resolved by the final decision of a court of competent jurisdiction on a clearly articulated basis which establishes that the Indemnifying Party is materially and irrevocably prejudiced by Facility Sublessee would not be responsible to indemnify the failure Owner Participant under Section 4 of this Agreement in the absence of such acknowledgment; and
(ix) the Owner Participant shall not be required to provide such written noticepursue any contest to the United States Supreme Court.
(b) The Owner Participant shall not settle any such claim described in this Section 7(a) without the Facility Sublessee's consent; provided that the Owner Participant shall not be required to contest any proposed adjustment and may settle any such proposed adjustment if the Owner Participant shall waive its right to indemnity under this Agreement with respect to such adjustment and shall pay to the Facility Sublessee any amount previously paid or advanced by the Facility pursuant to this Agreement with respect to such adjustment or the contest of such adjustment (other than amounts paid or advanced pursuant to this Section 7(a)(iv)).
(c) The Owner Participant (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much make payment of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies any claim for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) at least 30 days after delivery from Stockholder Representative the giving of written notice of such claim to the intent Facility Sublessee if such forbearance is permitted by law and shall inform the Facility Sublessee in reasonable detail of the nature and extent of and purported basis (to take the extent of the Owner Participant's knowledge thereof) for such actionclaim, notify Stockholder Representative in writing that it so objects, specifying (ii) shall consult with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate consider in good faith the Facility Sublessee's suggestions regarding the conduct of such contest (but the manner in which such contest is conducted shall be determined in all respects by the Owner Participant in its sole discretion) and use their commercially reasonable efforts shall keep the Facility Sublessee reasonably informed as to resolve the progress of such itemscontest, and (iii) shall at the request of the Facility Sublessee permit the Facility Sublessee and its counsel to review and make suggestions on all submissions to the IRS and any court to the extent such submissions relate to the Loss (it being understood that the Facility Sublessee shall not be permitted to review any portions of such submissions that relate to issues unrelated to the transactions contemplated by the Operative Documents). The Facility Sublessee and its counsel shall maintain confidentiality with respect to all such information.
(d) If Buyer Parties the Facility Sublessee shall have requested the Owner Participant to contest such claim as above provided and Stockholder Representative are unable shall have duly complied with all the terms of this Section 7, the Facility Sublessee's liability for indemnification under Section 5 of this Agreement shall, at the Facility Sublessee's election, be deferred until a Final Determination of the liability of the Owner Participant. At such time, the Facility Sublessee shall become obligated for the payment of any indemnification hereunder not theretofore paid resulting from the outcome of such contest, and the Owner Participant shall become obligated to reach repay to the Facility Sublessee the amount of any interest-free advance made pursuant to this Section 7(a)(vi) together with any interest received by or credited to the Owner Participant that is attributable to such agreement advance. Such obligations of the Owner Participant and the Facility Sublessee will first be set off against each other, and any difference owing by any party shall be paid within ten (10) 30 days after receipt by Stockholder Representative of such notice, Final Determination.
(e) The Owner Participant shall also not be required to contest any proposed adjustment if the disputed items subject matter thereof shall be resolved by the Dispute Advisor of a continuing nature and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representative.there shall
Appears in 1 contract
Sources: Tax Indemnification Agreement (Oglethorpe Power Corp)
Contests. (ai) Buyer Parties and Whenever any taxing authority asserts a claim, makes an assessment or otherwise disputes or affects the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Income Tax liability reporting position of the Companies with respect to a Pre-Closing Tax Period or any actions with respect United States Purchased Entities for periods prior to the same. The failure of Buyer Parties Closing Date or the Companies amount of Taxes for which Seller is or may be liable under this Agreement, Holdings shall, promptly upon receipt by Holdings or the United States Purchased Entities of notice thereof, inform Seller, and Seller shall have the right to deliver control any resulting proceedings and to determine whether and when to settle any such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax claim, assessment or Damage directly or indirectly related to the subject matter of such written notification or other communication except dispute, to the extent that such proceedings or determinations affect the Indemnifying Party is materially and irrevocably prejudiced by Income Tax reporting position of the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard United States Purchased Entities for periods prior to the Deductible) shall control any audit Closing Date or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment the amount of Taxes of the Companies (eachfor which Seller is liable under this Agreement; provided that Seller shall consult in good faith with Holdings regarding any such audit, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only proceeding or determination to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7audit, including through recovery against the Indemnification Escrow Account, which has not expired proceeding or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not determination would reasonably be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely expected to affect the Tax liability of Buyer Parties or the Companies Taxes for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be United States Purchased Entities, Purchaser or Holdings is liable hereunderunder this Agreement; and, provided further, that, without the prior written consent of Parent, which Holdings (such consent shall not to be unreasonably withheld), delayed (A) neither Seller nor any of its Affiliates shall, unless otherwise required by Law, take any position on any Tax Return or conditioned. If Buyer Parties object in any contest or proceeding relating to Taxes after the Closing Date not in accordance with past custom and practice that materially adversely affects the United States Purchased Entities, their respective Tax attributes or Tax liability for a taxable period or portion thereof beginning after the Closing Date, and (B) neither Seller nor any of its Affiliates shall agree to any action that Stockholder Representative proposes settlement in respect of any contest or proceeding relating to take pursuant Taxes (other than federal Income Taxes) after the Closing Date not in accordance with past custom or practice which would materially adversely affect the United States Purchased Entities, their respective Tax attributes or Tax liability for a taxable period or portion thereof beginning after the Closing Date.
(ii) Whenever any taxing authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which Purchaser or Holdings is liable under this Agreement, Seller shall, promptly upon receiving notice thereof, inform Holdings. Holdings shall have the right to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or dispute, but only to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative extent such proceedings affect the amount of written notice of the intent to take such action, notify Stockholder Representative in writing Taxes for which Holdings is liable under this Agreement; provided that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection Holdings shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate consult in good faith with Seller regarding any audits of Holdings' and use their commercially reasonable efforts the United States Purchased Entities's Tax Returns to resolve the extent such items. If Buyer Parties audits would reasonably be expected to affect Taxes for which Seller is liable under this Agreement; provided further, that, without the prior written consent of Seller (such consent not to be unreasonably withheld), (A) neither Holdings nor any of its Affiliates shall, unless otherwise required by Law, take any position on any Tax Return or in any contest or proceeding relating to Taxes after the Closing Date not in accordance with past custom and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, practice that materially adversely affects the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses Tax liability of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representative.United States
Appears in 1 contract
Contests. (a) Buyer Parties In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date or for which Purchaser may seek indemnity from Sellers, the Sellers shall have the right to participate in and control the conduct of such audit or proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which any Seller has acknowledged liability and the Companies issue underlying the potential adjustment does not recur for any period ending subsequent to the Closing Date. Sellers shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability keep Purchaser fully informed of the Companies with respect progress of any such audit or proceeding and, if it appears in the sole discretion of the Purchaser, that such audit or proceeding may reasonably be expected to adversely affect the Purchaser or KC Machine, the Purchaser also may participate in any such audit or proceeding. If the Sellers do not assume the defense of any such audit or proceeding promptly, the Purchaser may defend and settle the same (for the Sellers’ account and at Sellers’ expense) in such manner as it may deem appropriate. In the event that a Pre-Closing Tax Period potential adjustment as to which the Sellers would be liable is present in the same proceeding as a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or any actions proceeding with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written noticelatter potential adjustment.
(b) With respect to a potential adjustment for which any Seller and the Purchaser or KC Machine could be liable, or which involves an issue that recurs for any period ending after the Closing Date (whether or not the subject of audit at such time),
(i) Stockholder Representative (both the Purchaser and the Sellers may participate in the audit or proceeding, each at Stockholders’ its own expense, which and
(ii) the audit or proceeding shall be paid solely from controlled by that party which would bear the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes burden of the Companies greater portion of the dollar amount of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (eachin particular, a “Tax Matter”choice of judicial forum) for any Pre-Closing Tax Period in circumstances in which separate issues are otherwise controlled hereunder by the Purchaser and the Sellers.
(but for this purpose excluding any Straddle Periodc) but only to Except as provided in clause (a) above, neither the extent Purchaser nor the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative Sellers shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, compromise or otherwise compromise, agree to settle any such claim pursuant to any Tax Matter that reasonably could audit or proceeding which would adversely affect the liability of Buyer Parties other party, or the Companies result in a material benefit to that party, for any Taxes, as to which the Stockholders would not be liable hereunder, such year or a subsequent year without the prior written consent of Parentthe other party, which consent shall may not be unreasonably withheld, delayed withheld or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativedelayed.
Appears in 1 contract
Sources: Company Purchase Agreement (T-3 Energy Services Inc)
Contests. (ai) After the Closing, Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications notify Seller in writing of (x) any correspondence from any Taxing Authority Tax authority relating to any Tax liability Return filed by Seller pursuant to Section 6.11(b)(i) or by Buyer pursuant to Section 6.11(b)(ii) and (y) any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving Company or any of its Subsidiaries (clauses (x) and (y) together, a “Tax Contest”) which, if determined adversely to the Companies with respect taxpayer, would be grounds for indemnification by Seller (including any payment under Section 6.11(c)).
(ii) In the case of a Tax Contest that relates to a Pre-Closing Period, Seller shall have the right at its expense to control the conduct of such Tax Period Contest; provided that (x) Seller shall indemnify the Company or any actions of its Subsidiaries in respect of all third-party costs and expenses incurred by such Company or any such Subsidiary at Seller’s request in connection with respect to such Tax Contest, (y) Seller shall keep Buyer informed of all material progress (and shall send Buyer copies of all material correspondence relating thereto) of the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period Tax Contest and (z) Seller shall not affect the rights of an Indemnified Party under Article 7 enter into any compromise or agree to settle any claim pursuant to such Tax Contest with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent issue that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) recurs for any Pre-Closing Tax Straddle Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert Period or any defenses item resulting in a reciprocal adjustment to any Straddle Period or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Post-Closing Period without the prior written consent of Parent, Buyer (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed). If Buyer Parties object to also may participate at its own expense in any action that Stockholder Representative proposes to take such Tax Contest and, if Seller does not notify Buyer in writing within 30 days of receiving notice of such Tax Contest pursuant to Section 6.11(f)(i) hereof of its intent to assume the preceding sentencedefense of such Tax Contest, Buyer Parties shallmay defend the same in such manner as it may deem appropriate, within thirty (30) days including, but not limited to, settling such Tax Contest after delivery from Stockholder Representative of giving five days’ prior written notice to Seller setting forth the terms and conditions of settlement.
(iii) In the case of a Tax Contest that relates to a Straddle Period, (x) each of Seller and Buyer may participate in the Tax Contest, and (y) the Tax Contest shall be controlled by that party which would bear the burden of the intent to take such action, notify Stockholder Representative greater portion of the adjustment (the “Controlling Party”); provided that (a) the Controlling Party shall indemnify the Company or any Subsidiary in writing that it so objects, specifying with particularity respect of all third-party costs and expenses incurred by the objectionable action and stating the specific factual Company or legal basis for any such objection. If a notice Subsidiary at the Controlling Party’s request in connection with such Tax Contest, (b) the Controlling Party shall keep the other party informed of objection all material progress (and shall be duly deliveredsend such party copies of all material correspondence relating thereto) of the Tax Contest and (c) if Seller is the Controlling Party, Buyer Parties and Stockholder Representative Seller shall negotiate in good faith and use their commercially reasonable efforts not enter into any compromise or agree to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and settle any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it claim pursuant to such procedures as it may requireTax Contest with respect to any issue that recurs for any Straddle Period or Post-Closing Period or any item resulting in a reciprocal adjustment to any Straddle Period or Post-Closing Period without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed). The costs, fees and expenses principle set forth in clause (y) of the Dispute Advisor preceding sentence also shall govern for purposes of deciding any issue that must be borne equally by decided
(iv) In the case of a Tax Contest that relates to a Post-Closing Period, Buyer Parties shall have the right at its expense to control the conduct of such Tax Contest.
(v) Except as provided in paragraph (ii) above, neither Buyer nor Seller shall enter into any compromise or agree to settle any claim pursuant to any Tax Contest which would adversely affect the other party for such year or a subsequent year, or which would result in a payment under Section 6.11(d), without the written consent of the other party, which consent may not be unreasonably withheld. Buyer and Stockholder RepresentativeSeller agree to cooperate, and Buyer agrees to cause the Company and any of its Subsidiaries to cooperate, in the defense against or compromise of any claim in any Tax Contest.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Crown Media Holdings Inc)
Contests. (a) Buyer Parties Newco Sub agrees to give written notice to the Remington Holders of the receipt of any written notice by any Company Party, and the Companies shall promptly forward Remington Holders agree to Stockholder Representative all give to Newco Sub written notifications and other communications from any Taxing Authority relating to any Tax liability notice of the Companies with respect to a Pre-Closing Tax Period receipt of any written notice by them, that involves the assertion of any claim, or the commencement of any actions Action, with respect to the same. The failure Target Companies which could result in a breach of Buyer Parties a representation or the Companies warranty in Section 3.21 or relates to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period of any Target Company (including, for the avoidance of doubt, any partnership-level proceeding or claim related to an IRS Form 1065 of the Target for an applicable period but excluding any partner-level proceeding or claim of any Remington Holder) (a “Tax Claim”). The Remington Holders will have the right (but for this purpose excluding not the obligation) to control the contest or resolution of any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedClaim; provided, howeverthat (a) the Remington Holders will have provided written notice to Newco Sub of its intention to control such Tax Claim, that Stockholder Representative shall provide to Buyer Parties and (at Buyer Parties’ expense, b) the Remington Holders will obtain the prior written consent of the Target (which expense shall consent will not be subject to indemnification under Article 7unreasonably withheld or delayed) reasonable participation rights with respect to so much before entering into any settlement or concession of such Tax Matter that is Claim if such settlement or concession could reasonably likely be expected to affect adversely impact the Tax liability of Buyer Parties Newco Sub, the Target or the Companies their Affiliates for Taxes for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims; provided, enter into any settlement offurther, or otherwise compromise, any that Newco Sub will be entitled to participate in the defense of such Tax Matter Contest and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel will be borne by Newco Sub. To the extent the Remington Holders do not control a Tax Claim, the Company Parties may defend against such Tax Claim; provided that reasonably could adversely affect the liability Remington Holders will be entitled to participate in the defense of Buyer Parties or such Tax Claim and to employ counsels of their choice for such purpose, the Companies for any Taxes, as to fees and expenses of which separate counsel will be borne by the Stockholders would respective Remington Holders; provided further that such Tax Claim may not be liable hereunder, settled or conceded without the prior written consent of Parentthe Remington Holders, which consent shall will not be unreasonably withheldwithheld or delayed. In the event of a conflict between this Section 7.05 and any other section of this Agreement, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant this Section 7.05 will govern with respect to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative control of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeTax Claims.
Appears in 1 contract
Sources: Acquisition Agreement (Ashford Inc)
Contests. If a notice of deficiency, proposed adjustment, assessment, audit, examination or other administrative or court proceeding, suit, dispute or other claim (aa “Tax Contest”) Buyer Parties and shall be delivered, sent, commenced, or initiated to, by or against a Parent Group Member, the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from Company or any Taxing Authority relating to Subsidiary by any Tax liability of the Companies taxing authority with respect to a Pre-Closing Taxes that results in or may result in Tax Period Losses or any actions with respect Expenses for which indemnification may be claimed against Shareholders and the DolEx Class B Shareholders under this Agreement, Parent shall promptly notify the Shareholder Representative in writing of such Tax Contest; provided that the failure to so notify the same. The failure of Buyer Parties Shareholder Representative shall not relieve Shareholders or the Companies to deliver such written notice in such period shall not affect the rights DolEx Class B Shareholders of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication their indemnification obligations hereunder, except to the extent that such failure prejudices the Indemnifying Party is materially and irrevocably prejudiced by Shareholders or the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes DolEx Class B Shareholders defense of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only Contest. The Shareholders and the DolEx Class B Shareholders shall have the right to represent the extent the Stockholders have an obligation Company and each Subsidiary’s interests and to employ counsel of their choice at their expense with respect to any such Tax Matter under Article 7, including through recovery against Contest for which they are entirely liable; provided that the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Shareholder Representative shall provide immediately notify Parent of the decision to Buyer Parties (take control of such Tax Contest; and Parent shall cause the Company and each Subsidiary to execute any powers of attorney or other documents or forms necessary in order to allow the Shareholders and the DolEx Class B Shareholders to control such Tax Contest and to settle any such Tax Contest. In the case of any such Tax Contest, Parent shall also be entitled to participate at Buyer Parties’ expenseits own expense in such Tax Contest. In the case of any Tax Contest relating to any Tax for any Straddle Period, which expense shall not be subject to indemnification under Article 7) reasonable participation rights or with respect to so much any Tax Contest in which the Shareholders or the DolEx Class B Shareholders do not have the right to represent the Company or a Subsidiary’s interest pursuant to this Section 10.2(d), Parent, the Shareholders, and the DolEx Class B Shareholders shall each be entitled to participate at their own expense in such Tax Contest to the extent it relates to a Tax for which such party bears Losses or Expenses pursuant to Section 10.1. No party may settle or otherwise dispose of any Tax Contest in any manner without the consent and approval of the other party, which consent and approval will not be unreasonably withheld, conditioned or delayed. In the event that Shareholders or the DolEx Class B Shareholders do not take control of a Tax Contest that they have the right to control hereunder, Parent shall keep the Shareholder Representative reasonably informed as to the progress of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative Contest and shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any other disposition of such Tax Matter that reasonably could adversely affect Contest prior to receiving the liability written consent of Buyer Parties or the Companies for any TaxesShareholder Representative, as to which the Stockholders would consent will not be liable hereunderunreasonably withheld, conditioned or delayed. In no event, without the prior written consent of Parentthe Shareholder Representative, which consent shall not be unreasonably withheld, delayed conditioned or conditioned. If Buyer Parties object to delayed, shall Parent, the Company or each Subsidiary grant an extension of any action that Stockholder Representative proposes to take pursuant applicable statute of limitations in respect of any Tax period ending on or prior to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual Closing Date or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeStraddle Period.
Appears in 1 contract
Contests. (ai) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all Promptly after receipt by any Party or any of their Affiliates of a written notifications and other communications from any Taxing Authority relating to any Tax liability notice of the Companies with respect assertion or commencement of any claim, assessment, deficiency, audit, review, examination or other proposed change or adjustment by any Governmental Body or any judicial or administrative proceeding (each, a “Tax Claim”) relating to a Pre-Closing Tax Period of Mandate (or any actions other Tax Claim for which the Sellers may be liable under this Agreement), the recipient shall notify in writing Purchaser and/or the Mandate Representative of the Tax Claim, as applicable. Such notice must be sent in a timely manner and must contain factual information (to the extent known) describing the Tax Claim in reasonable detail and must include copies of the notice and any or other document received from any Governmental Body in respect of any such Tax Claim.
(ii) Except as provided in subparagraph (iv) below, the Mandate Representative shall have the right to control and direct the conduct, defense, prosecution, settlement and compromise of such Tax Claim and to file amended Tax Returns or claims for Tax refunds or credits with respect to Tax periods ending on or before the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to TaxesClosing Date, and contest, resolve and defend against any assessment for additional Taxes, notice to employ counsel of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedits choice at its expense in connection therewith; provided, however, that Stockholder Representative shall provide to Buyer Parties (Purchaser and its representatives will be permitted, at Buyer Parties’ their expense, which expense shall not to be subject present at all proceedings and to indemnification under Article 7) reasonable participation rights with respect review all correspondence and submissions related to so much of any such Tax Matter that is reasonably likely to affect Claim, amended Tax Return or claim for Tax refund or credit. Notwithstanding the Tax liability of Buyer Parties or foregoing, the Companies for any Post-Closing Tax Period. Stockholder Mandate Representative shall not assert any defenses have the right to settle, concede or claimscompromise, enter into any settlement of, either administratively or otherwise compromiseafter the commencement of litigation, any such Tax Matter Claim or file any amended Tax Return or claim for Tax refund or Tax credit, that reasonably could adversely affect would result in an aggregate increased Tax liability for Purchaser or its Affiliates (excluding Taxes covered by the liability Sellers’ indemnification obligations) of Buyer Parties or the Companies for any Taxesmore than Thirty-Five Thousand Dollars ($35,000), as to which the Stockholders would not be liable hereunderexcluding interest and penalties, without the prior written consent of ParentPurchaser. Such consent shall not be unreasonably withheld, and shall not be necessary to the extent that the Sellers or Mandate have agreed to indemnify Purchaser or its Affiliates against such increased Tax liability.
(iii) Except as provided in subparagraph (iv) below, Purchaser shall have the right to control and direct the conduct, defense, prosecution, settlement and compromise of any Tax Claim to the extent that such Tax Claim pertains to a taxable period beginning after the Closing Date; provided, however, that the Mandate Representative and its representatives will be permitted, at their expense, to be present at all proceedings and review all correspondence and submissions related to any such Tax Claim if it is reasonably foreseeable that the disposition thereof could affect the Sellers’ liability for Taxes to any Governmental Body or to Purchaser under this Agreement. Neither Purchaser nor any of its Affiliates (including Mandate) shall have the right to settle, concede or compromise, either administratively or after the commencement of litigation, any Tax Claim or file any amended Tax Return or claim for Tax refund or Tax credit, if such action would adversely affect the aggregate liability for Taxes of any Seller or their indemnification obligations to Purchaser under this agreement of more than Thirty-Five Thousand Dollars ($35,000), excluding penalties and interest, without the prior written consent of the Mandate Representative. Such consent shall not be unreasonably withheld, and shall not be necessary to the extent that Purchaser has agreed to indemnify the Sellers against the effects of any such settlement.
(iv) In the case of a Tax Claim involving a Tax liability or potential Tax liability of Mandate relating to a period beginning before and ending after the Closing Date (a “Straddle Period”), then the conduct of such Tax Claim shall be tendered to the Mandate Representative provided (1) the Tax Claim pertains solely to Taxes for which the Sellers are financially responsible under this Agreement and (2) the resolution of such Tax Claim shall not adversely affect the Purchaser’s tax reporting positions for items of income, gain, deductions and losses arising after the Closing Date. In all other cases relating to a Straddle Period, the Mandate Representative and the Purchaser will jointly conduct the Tax Claim using legal counsel or other tax advisors reasonably acceptable to both parties. Regardless of which party controls a Tax Claim under this subparagraph (iv), both the Purchaser and the Mandate Representative and their representatives will be permitted, at their expense, to be present at all proceedings and to review all correspondence and submissions related to such Tax Claim, and neither party shall, or cause or permit any of its Affiliates or Mandate to, settle, concede or compromise a Tax Claim relating to a Straddle Period without the prior written consent of the Mandate Representative (if the Sellers may be adversely affected thereby) or the prior written consent of LGE (if Purchaser or LGE maybe adversely affected thereby), which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to Except as provided in the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice all of the intent costs of the conduct of a Tax Claim relating to take such actiona Straddle Period that can be directly allocated to the portions of the Tax Claim for which the Sellers or Purchaser are financially responsible, notify Stockholder Representative in writing that it so objectsas applicable, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly deliveredso allocated to such parties and any costs that cannot be so allocated will be shared between Purchaser and the Sellers based on their proportionate amounts of the Tax that is ultimately assessed (or, Buyer if such Tax is not ultimately assessed, the proportionate amount of such Tax that was contested in such Tax Claim) that relates to the portion of such Straddle Period ending on the Closing Date and the portion thereof beginning after the Closing Date.
(v) If the Parties and Stockholder Representative are unable to resolve any dispute relating to the settlement of a Tax Claim, the matter shall negotiate in good faith and use their commercially reasonable efforts be submitted to a mutually acceptable nationally recognized accounting firm for resolution, which accounting firm shall be instructed to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, dispute in accordance with the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativestandards contained in this Section 5.1.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Lions Gate Entertainment Corp /Cn/)
Contests. (ai) Buyer Parties Each of the Buyer, on the one hand, and the Companies Seller, on the other hand (the "Recipient"), shall promptly forward notify the other party in writing within 60 days of receipt by the Recipient of written notice of any pending or threatened audits, notice of deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim (a "Tax Claim") which could affect the liability for Taxes of such other party. If the Recipient fails to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect give such prompt notice to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period other party it shall not affect the rights of an Indemnified Party under Article 7 be entitled to indemnification for any Taxes arising in connection with respect to any such Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except Claim if and to the extent that the Indemnifying Party is such failure to give notice materially and irrevocably prejudiced by adversely affects the failure other party's right to provide such written noticeparticipate in the Tax Claim.
(bii) (i) Stockholder Representative (The Seller shall have the sole right to represent the Company's interests in any Tax Claim relating to taxable periods ending on or before the Closing Date and to employ counsel of it choice at Stockholders’ its expense. In the case of a Straddle Period, the Seller shall be entitled to participate at its expense in any Tax Claim relating in any part to Taxes attributable to the portion of such Straddle Period deemed to end on or before the Closing Date and, with the written consent of the Buyer, at the Seller's sole expense, which shall be paid solely from may assume the Stockholder Representative Expense Amount first and then from control of such entire Tax Claim. None of the Indemnification Escrow Account without regard to Buyer, any of its affiliates, or the Deductible) shall control any audit or examination by any taxing authority Company or any other judicial subsidiary may settle or administrative proceeding with respect to Taxes, and contest, resolve and defend against otherwise dispose of any assessment Tax Claim for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of which the Companies (each, Seller may have a “Tax Matter”) for any Pre-Closing Tax Period (but for liability under this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement ofAgreement, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the which may result in an increase in Seller's liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunderunder this Agreement, without the prior written consent of Parentthe Seller, which consent shall not may be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to withheld in the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice sole discretion of the intent to take such actionSeller, notify Stockholder Representative and none of Seller or any of its affiliates may settle or dispose of any Tax Claim for which Buyer or the Company may have a liability under this Agreement, or which may result in writing that it so objectsan increase in Buyer's or the Company's tax liability for taxable periods ending after the Closing without the prior written consent of Buyer, specifying with particularity which consent may be withheld in the objectionable action and stating the specific factual or legal basis for any such objection. If a notice sole discretion of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeBuyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Vlasic Foods International Inc)
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and If an audit is commenced, an adjustment is proposed or any other communications from claim is made by any Taxing Authority relating with respect to any a Tax liability of the Companies with respect Company or the Subsidiary relating to a Pre-Closing Tax Period for which the Seller could be liable under Article XII, Buyer shall promptly notify the Seller of such audit or such proposed adjustment or such claim. If the Seller so requests and at the Seller's expense, Buyer shall cause the relevant entity (Buyer, the Company or the Subsidiary, or any actions of their respective successors) to contest such claim on audit or by appropriate claim for refund or credit of Taxes or in a related administrative or judicial proceeding, and shall permit the Seller, at its option and expense, to control the prosecution and settlement of any such audit or refund claim or related administrative or judicial proceeding but only with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent those specific matters that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is could reasonably likely to affect the Tax liability of the Seller, including any liability hereunder, or their right to payment; and, where reasonably deemed necessary by the Seller and in accordance with the foregoing, Buyer Parties shall cause the relevant entity to authorize by appropriate powers of attorney such persons as the Seller shall designate to represent such entity with respect to such audit or refund claim or related administrative or judicial proceeding and to settle or otherwise resolve any such proceeding but only as it specifically relates to such matters for which Seller confirms in writing its sole liability for the Tax matters at issue. The Seller shall keep Buyer reasonably informed of the progress of any such claim, action or proceeding and shall permit Buyer to participate therein, at Buyer's expense. Buyer shall further execute and deliver, or cause to be executed and delivered, to the Seller or its designee all instruments and documents reasonably requested by the Seller to implement the provisions of this Section 8.8(c). Any refund of Taxes obtained by Buyer or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take affected entity pursuant to the preceding sentence, Buyer Parties shall, within thirty (30this Section 8.8(c) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts paid promptly to resolve such items. If Buyer Parties and Stockholder Representative are unable the Seller to reach such agreement within ten (10) days the extent the refund relates to Taxes funded by Seller after receipt by Stockholder Representative of such notice, Closing or to the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred extent payable to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeSeller under Section 8.8(b).
Appears in 1 contract
Contests. (a) Buyer Parties and After the Companies Closing, the Purchaser shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to notify the Seller in writing of the commencement of any Tax liability audit or administrative or judicial proceeding and shall also separately notify the Seller in writing of any demand or claim on the Companies with respect to a Pre-Closing Tax Period Purchaser or any actions with respect the Company which, if determined adversely to the sametaxpayer or after the lapse of time would be grounds for indemnification by the Seller under this Article VII. The failure of Buyer Parties or the Companies to deliver such written Such notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except contain factual information (to the extent that known to the Indemnifying Party Purchaser or the Company) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability. If the Purchaser fails to give the Seller prompt notice of an asserted Tax liability as required by this Section 7.04, then (i) if the Seller is materially and irrevocably prejudiced precluded by the failure to provide give prompt notice from contesting the asserted Tax liability in the appropriate administrative or judicial forums, then the Seller shall not have any obligation to indemnify the Purchaser for any loss or damage arising out of such written noticeasserted Tax liability, and (ii) if the Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to the Seller, then any amount which the Seller is otherwise required to pay the Purchaser pursuant to this Article VII with respect to such liability shall be reduced by the amount of such detriment.
(b) (i) Stockholder Representative (The Seller may elect to direct, through counsel of its own choosing and at Stockholders’ its own expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial audit, or administrative or judicial proceeding involving any asserted liability with respect to Taxeswhich indemnity may be sought under this Article VII (any such audit or proceeding relating to an asserted Tax liability are referred to herein collectively as a "CONTEST"). If the Seller elects to direct the Contest of an asserted Tax liability, it shall within 30 calendar days of receipt of the notice of an asserted Tax liability notify the Purchaser of its intent to do so, and contestthe Purchaser shall cooperate in good faith and shall cause the Company or its successor to cooperate in good faith, resolve at the Seller's expense, in each phase of such Contest. If the Seller contests its obligation to indemnify the Purchaser under Section 7.01 and defend against any assessment for additional Taxesthe Purchaser elects to proceed with the Contest, notice the Seller shall only be obligated to pay the Purchaser's expenses in connection with such Contest in the event it is determined that the Seller is obligated to pay such asserted liability under Section 7.01. If the Seller elects not to direct the Contest or fails to notify the Purchaser of Tax deficiency its election as herein provided, the Purchaser or other adjustment of Taxes of the Companies (eachCompany may pay, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to compromise or contest such asserted liability, at the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedSeller's expense; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification if the Seller has acknowledged its obligations under Article 7) reasonable participation rights Section 7.01 with respect to so much such asserted liability, the Purchaser may not contest such asserted liability. However, in such case, neither the Purchaser nor the Company (including any designated representative of such Tax Matter either) may settle or compromise any asserted liability over the objection of the Seller; provided, however, that is reasonably likely the Seller's consent to affect the Tax liability of Buyer Parties settlement or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent compromise shall not be unreasonably withheldwithheld (provided that in the event the Seller withholds consent, delayed the Seller shall then be obligated to direct such Contest). In any event, each of the Purchaser (or conditionedthe Company) and the Seller may participate, at its own expense, in the Contest. If Buyer Parties object the Seller chooses to any action that Stockholder Representative proposes direct the Contest, the Purchaser shall promptly empower and shall cause the Company or its successor promptly to take pursuant to the preceding sentence, Buyer Parties shall, within thirty empower (30by power-of-attorney and such other documentation as may be appropriate) days after delivery from Stockholder Representative of written notice such representatives of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures Seller as it may require. The costs, fees and expenses of designate to represent the Dispute Advisor shall Purchaser or the Company or its successor in the Contest insofar as the Contest involves an asserted Tax liability for which the Seller would be borne equally by Buyer Parties and Stockholder Representativeliable under this Article VII.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sykes Healthplan Services Inc)
Contests. (ai) Seller and Buyer Parties shall notify the other Party in writing within fourteen (14) days or such shorter period as may be required thereby of receipt by it or any of its Affiliates of written notice of any pending or threatened Tax examination, audit or other administrative or judicial proceeding (a “Tax Contest”) that could reasonably be expected to result in an indemnification obligation of such other Party pursuant to this Agreement and such timely notice shall specify in reasonable detail the basis for any claim included therein and shall include a copy of the relevant portion of any correspondence received from the taxing authority. If the recipient of such notice of a Tax Contest fails to provide such timely notice to such other Party, it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Contest, but only to the extent, if any, that such failure or delay shall have adversely affected the indemnifying Party’s ability to defend against, settle, or satisfy any action, suit or proceeding against it, or any damage, loss, claim, or demand for which the indemnified Party is entitled to indemnification hereunder, and the Companies indemnifying Party’s indemnity obligations shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect be reduced to the same. The failure extent of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly other liability incurred as a result of the delay or indirectly failure to receive such timely notice.
(ii) If a Tax Contest relates to any Taxes for which Seller is liable in full hereunder, Seller shall at its expense control the defense and settlement of such Tax Contest. If such Tax Contest relates to any Taxes for which Buyer is liable in full hereunder, Buyer shall at its own expense control the defense and settlement of such Tax Contest. The Party not in control of the defense shall have the right to observe the conduct of any Tax Contest at its expense, including through its own counsel and other professional experts. Buyer and Seller shall jointly represent CEM, CPI, any Investor Subsidiary, any Service Subsidiary or any Project Company in any Tax Contest relating to Taxes for which both are liable hereunder, and fees and expenses related to such representation shall be paid equally by Buyer and Seller.
(iii) Notwithstanding anything to the subject matter of such written notification or other communication except contrary in Section 6.9(d)(ii), to the extent that an issue raised in any Tax Contest controlled by one Party or jointly controlled could materially affect the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment liability for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (eachother Party, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent controlling Party shall not, and neither Party in the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much case of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claimsjoint control shall, enter into any a final settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parentthe other Party, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object Where a Party reasonably withholds its consent to any action final settlement, that Stockholder Representative proposes Party may continue or initiate further proceedings, at its own expense, and the liability of the Party that wished to take pursuant settle (as between the consenting and the non-consenting Party) shall not exceed the liability that would have resulted from the proposed final settlement including interest, additions to Tax, and penalties that have accrued at that time, and the non-consenting Party shall indemnify the consenting Party for any liability in excess of liability that would have resulted from the proposed final settlement.
(iv) Notwithstanding any other provision of this Agreement to the preceding sentencecontrary, if a Tax Contest results in an increase in Income Taxes for which Seller is liable hereunder and such increase is attributable to adjustments based on timing differences which will reverse in Tax periods ending subsequent to the Closing Date, Buyer Parties shallshall promptly pay to Seller, within thirty (30) days after delivery from Stockholder Representative of upon Seller's written notice request, an amount equal to the present value of the intent to take such action, notify Stockholder Representative reduction in writing that it so objects, specifying with particularity Income Taxes payable by the objectionable action Buyer and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate its Affiliates in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt future Tax periods by Stockholder Representative reason of such noticereversal, determined by using a discount rate of 6% and an assumed Tax rate of 40%, and by assuming that such reduction in Income Taxes will occur in the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days year or years of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativereversal.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mdu Resources Group Inc)
Contests. (a) Buyer Parties and After the Companies Closing, Purchaser shall promptly forward to Stockholder Representative all notify Sellers in writing of any written notifications and other communications from any Taxing Authority relating to any Tax liability notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of Purchaser or the Companies with respect to a Pre-Closing Tax Period or any actions with respect Company which, if determined adversely to the same. The taxpayer, would be grounds for indemnification under this ARTICLE IX; PROVIDED, HOWEVER, that the failure of Buyer Parties or the Companies to deliver give such written notice in such period shall will not affect the rights of an Indemnified Party Purchaser's right to indemnification under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication this ARTICLE IX except to the extent extent, if any, that the Indemnifying Party is materially and irrevocably prejudiced by the Purchaser's failure to provide such written noticeso notify Sellers precludes Sellers from contesting the Tax in question.
(b) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, PROVIDED that Sellers acknowledge in writing their liability under this Agreement to hold Purchaser and the Company harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding and, PROVIDED FURTHER, that such audit or proceeding relates only to Taxes for which Sellers are liable, Sellers shall have the right at their expense to participate in and control the conduct of such audit or proceeding; Purchaser also may participate in any such audit or proceeding and, if Sellers do not assume the defense of any such audit or proceeding or if Sellers assume such defense but do not diligently conduct such contest, Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after five (i5) Stockholder Representative (Business Days prior written notice to Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which Sellers have acknowledged their liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which Purchaser would be liable, Purchaser shall have the right, at Stockholders’ its expense, which shall be paid solely from to control the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxesthe latter issues.
(c) With respect to issues relating to a potential adjustment for which both Sellers (as evidenced by their acknowledgement under SECTION 9.04) and Purchaser or the Company could be liable, (i) each party may participate in the audit or proceedings, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency (ii) the audit or other adjustment of Taxes proceedings shall be controlled by that party which would bear the burden of the Companies greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (each, a “Tax Matter”including choice of judicial forum) for any Pre-Closing Tax Period in situations in which separate issues are otherwise controlled under this ARTICLE IX by Purchaser and Sellers.
(but for this purpose excluding any Straddle Periodd) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative Neither Purchaser nor Sellers shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, compromise or otherwise compromise, agree to settle any such claim pursuant to any Tax Matter that reasonably could audit or proceeding which would adversely affect the liability of Buyer Parties other party for such year or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, a subsequent year without the prior written consent of Parentthe other party, which consent shall may not be unreasonably withheldwithheld or delayed. Purchaser and Sellers shall cooperate, delayed and Purchaser shall cause the Company to cooperate, in the defense against or conditioned. If Buyer Parties object to compromise of any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative claim in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual any audit or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeproceeding.
Appears in 1 contract
Sources: Purchase Agreement (Viewpoint Corp)
Contests. (a) Buyer Parties New Holdco agrees to give written notice to the ▇▇▇▇▇▇▇ Appointees of the receipt of any written notice by any AINC Party, and the Companies Bennetts agree to give to New Holdco written notice of the receipt of any written notice by any of them or MJB Investments, of a Tax Claim which could result in liability for, or could reasonably be expected to adversely affect, the other Party. The ▇▇▇▇▇▇▇ Appointees shall promptly forward have the right (but not the obligation) to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to control, at their own expense (taking into account payments made under the Transition Cost Sharing Agreement), the contest or resolution of any Tax liability of the Companies with respect Claim that relates solely to a Pre-Closing Tax Period or any actions with respect to Period; provided, that, (a) the same. The failure of Buyer Parties or the Companies to deliver such ▇▇▇▇▇▇▇ Appointees will have provided written notice in to New Holdco within 30 days of the receipt of written notice of the Tax Claim of their intention to control such period shall Tax Claim, and (b) the ▇▇▇▇▇▇▇ Appointees will obtain the prior written consent of New Holdco (which consent will not affect the rights of an Indemnified Party under Article 7 with respect to be unreasonably withheld or delayed) before entering into any Tax settlement or Damage directly or indirectly related to the subject matter concession of such written notification Tax Claim if such settlement or other communication except concession could reasonably be expected to adversely affect any AINC Party; provided, further, that to the extent that such Tax Claim could reasonably be expected to adversely affect any AINC Party or relates to any entity-level Tax liability of a Remington Company, (x) New Holdco will be entitled to participate in the Indemnifying Party is materially defense of such Tax Contest and irrevocably prejudiced to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel will be borne by New Holdco, and (y) the failure ▇▇▇▇▇▇▇ Appointee will promptly keep New Holdco reasonably informed of all material developments related to such Tax Claim, promptly provide New Holdco with copies of (and a reasonable opportunity to comment on) all written materials to be provided to the applicable Governmental Authority (including good faith consideration of any such written notice.
comments) related to such Tax Claim (b) (i) Stockholder Representative (at Stockholders’ expenseor the relevant excerpts thereof), which shall be paid solely and promptly provide New Holdco with copies of any correspondence received from the Stockholder Representative Expense Amount first and then from applicable Governmental Authority related to such Tax Claim (or relevant excerpts thereof). The AINC Parties may control the Indemnification Escrow Account without regard to the Deductible) shall control any audit contest or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve resolution of and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only Claim to the extent the Stockholders have an obligation with respect ▇▇▇▇▇▇▇ Appointees are not entitled to any control such Tax Matter under Article 7Claim, including through recovery against or have not timely notified the Indemnification Escrow AccountAINC Parties that they will control such Tax Claim, which has not expired or lapsedpursuant to the preceding sentence, at the sole cost and expense of the AINC Parties; provided, however, provided that Stockholder Representative shall provide to Buyer the AINC Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much will promptly notify the ▇▇▇▇▇▇▇ Appointees upon taking control of such Tax Matter that is reasonably likely Claim and the ▇▇▇▇▇▇▇ Appointees will be entitled to affect participate in the Tax liability defense of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter Claim and to employ counsels of their choice for such purpose, the fees and expenses of which separate counsel will be borne by the respective Remington Parties (taking into account payments made under the Transition Cost Sharing Agreement); provided further that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would (i) such Tax Claim may not be liable hereunder, settled or conceded without the prior written consent of Parentthe ▇▇▇▇▇▇▇ Appointees, which consent shall will not be unreasonably withheldwithheld or delayed, delayed and (ii) the AINC Parties will promptly keep the ▇▇▇▇▇▇▇ Appointees reasonably informed of all material developments related to such Tax Claim, promptly provide the ▇▇▇▇▇▇▇ Appointees with copies of (and a reasonable opportunity to comment on) all written materials to be provided to the applicable Governmental Authority (including good faith consideration of any such comments) related to such Tax Claim (or conditionedthe relevant excerpts thereof), and promptly provide the ▇▇▇▇▇▇▇ Appointees with copies of any correspondence received from the applicable Governmental Authority related to such Tax Claim (or the relevant excerpts thereof). If Buyer In the event of a conflict between this Section 7.05 and any other section of this Agreement, this Section 7.05 will govern with respect to the control of Tax Claims. Notwithstanding anything to the contrary in this Article VII, subject to the Transition Cost Sharing Agreement, none of the AINC Parties object will have any rights with respect to any action Tax Claim with respect to Kylemore Investments, LP (including any Tax Claim with respect to an affiliated, combined, consolidated, unitary or similar group that Stockholder Representative proposes includes Kylemore Investments, LP) that is not with respect to take pursuant to the preceding sentence, Buyer Parties shall, within thirty any Remington Company (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeother than RHC).
Appears in 1 contract
Sources: Combination Agreement (Ashford Inc.)
Contests. (a) Each Party entitled to indemnification pursuant to Section 8.2 hereof (a “Tax Indemnified Person”) agrees to give written notice to the Indemnifying Person (the “Tax Indemnitor”) of any written notice received by the Tax Indemnified Person or an Affiliate of such Tax Indemnified Person (including, in the case where Buyer Parties is the Tax Indemnified Person, the Company and each Subsidiary thereof) which involves the Companies shall promptly forward assertion of any claim, or the commencement of any audit, suit, Action or proceeding (collectively, a “Tax Claim”) in respect of which indemnity may be sought (an “Indemnifiable Tax”) within ten (10) Business Days of such receipt or such earlier time as would allow the Tax Indemnitor to Stockholder Representative all written notifications and other communications from any Taxing Authority relating timely respond to any such Tax liability of Claim. The Tax Indemnified Person will give the Companies with respect to a Pre-Closing Tax Period or any actions Indemnitor such information with respect to the sameTax Claim as the Tax Indemnitor may reasonably request. The failure of Buyer Parties or the Companies to deliver such Such written notice shall describe in reasonable detail the facts constituting the basis for such Tax Indemnitor’s interests in such period shall not affect Tax Claim, the rights nature of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter relief sought, and the amount of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written noticeclaimed Losses (including Taxes).
(b) (i) Stockholder Representative (The Tax Indemnitor may, at Stockholders’ its own expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard participate in and, upon notice to the Deductible) shall Tax Indemnified Person, assume control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies defense of any Tax Claim for which it is the Tax Indemnitor. If the Tax Indemnitor assumes control, it will have the exclusive power to contest or settle the Tax Claim and determine the manner in which the contest or settlement occurs, in each case without the participation of the Tax Indemnified Person. In no case will a Tax Indemnified Person settle or otherwise compromise a Tax Claim without the Tax Indemnitor’s prior written consent.
(each, c) If a “Tax Matter”) Claim potentially involves some Taxes for any Pre-Closing Tax Period (but Periods for this purpose excluding any Straddle Period) but only which Seller would be required to the extent the Stockholders have an obligation with respect indemnify Buyer pursuant to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies Section 8.2 and other Taxes for any PostPre-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies Periods for any Taxes, as to which the Stockholders Seller would not be liable hereunderrequired to indemnify Buyer, without then, for purposes of this Section 8.4 only, Seller will be the prior written consent Tax Indemnitor and Buyer will be the Tax Indemnified Person as to all such Tax Claims.
(d) The Tax Indemnitor may discharge, at any time, its indemnity obligations by paying the Tax Indemnified Person the amount of Parentthe applicable indemnifiable Loss, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to calculated on the date of such payment.
(e) Notwithstanding any action that Stockholder Representative proposes to take pursuant provision to the preceding sentencecontrary herein, Seller or an Affiliate of Seller shall have sole control over, and neither Buyer Parties shallnor any Affiliate of Buyer shall have a right to control or participate in, within thirty (30) days after delivery from Stockholder Representative any Tax Claim relating to a consolidated, combined, unitary, affiliated or similar Tax or Tax Return that includes Seller or any Affiliate of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeSeller.
Appears in 1 contract
Sources: Stock Purchase Agreement (Volt Information Sciences, Inc.)
Contests. (a) Buyer Parties and the Companies shall promptly forward agrees to Stockholder Representative all give prompt written notifications and other communications from any Taxing Authority relating notice to any Tax liability Seller of the Companies with receipt of any written notice by the Company, Buyer or any of Buyer’s Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect to a of Pre-Closing Taxes (a “Tax Period Claim”). Seller may, at Seller’s expense, assume the defense of any such Tax Claim. If Seller assumes such defense, Seller will have the right to control (including selection of counsel) such Tax Claim and, without limiting the foregoing, may in its sole discretion pursue or forego any actions and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in its reasonable discretion, either pay the Tax claimed or ▇▇▇ for a refund where applicable Law permits such refund suits or contest the matter in any permissible matter. Seller may not, without Buyer’s consent, which shall not be unreasonably withheld or delayed, resolve any Tax Claim in a manner that would have an adverse effect on Buyer or the Company for a Post-Closing Tax Period. Buyer will cooperate with Seller with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter resolution of such written notification or other communication except to Tax Claim and will not, without the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expenseprior consent of Seller, which shall not be paid solely from unreasonably withheld or delayed, take any action to settle, compromise or resolve any matter related to such Tax Contest. If Seller does not assume the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) defense of a Tax Claim, Buyer shall control the contest or resolution of any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedClaim; provided, however, that Stockholder Representative Buyer shall provide have no obligation to defend or participate in the defense of a Tax Claim. If Buyer Parties (at defends or participates in the defense of a Tax Claim, Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without obtain the prior written consent of Parent, Seller (which consent shall not be unreasonably withheldwithheld or delayed) before entering into any settlement of a claim or ceasing to defend such claim; and, delayed or conditioned. If Buyer Parties object to any action provided further, that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection Seller shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate entitled to participate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative the defense of such noticeclaim and to employ counsel of its choice for such purpose, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor which separate counsel shall be borne equally solely by Buyer Parties Seller. Seller shall pay all Buyer’s reasonable costs and Stockholder Representativeexpenses, including attorneys’ fees, incurred in connection with any such Tax Claim.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Enservco Corp)
Contests. (a) After the Closing, Buyer Parties and the Companies shall promptly forward notify Seller in writing of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Buyer, its Affiliates or the Acquired Companies which, if determined adversely to Stockholder Representative all written notifications the taxpayer or after the lapse of time, could be grounds for indemnification by Seller. Such notice shall contain factual information (to the extent known to Buyer, its Affiliates or the Acquired Companies) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other communications document received from any Taxing Authority relating taxing authority in respect of any such asserted Tax liability. If Buyer fails to any give Seller prompt notice of an asserted Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period as required by this Section 8.4, then Seller shall not affect the rights of an Indemnified Party under Article 7 with respect have any obligation to indemnify for any Tax or Damage directly or indirectly related to the subject matter loss arising out of such written notification or other communication except asserted Tax liability, but only to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide give such written noticenotice results in a material detriment to Seller.
(b) In the case of a Tax audit or administrative or judicial proceeding (ia “Contest”) Stockholder Representative (that relates to taxable periods ending on or before the Closing Date, Seller shall have the sole right, at Stockholders’ its expense, which shall be paid solely from to control the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxesconduct of such Contest, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative Seller shall provide to keep Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights reasonably informed with respect to so much such Contest and that Buyer may (at its sole expense) participate in the defense of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax PeriodContest. Stockholder Representative Seller shall not assert any defenses or claims, enter into any settlement of, settle or otherwise compromise, agree to the resolution of any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Contest without the prior written consent of Parent, Buyer (which consent shall not be unreasonably withheld, delayed conditioned, or conditioneddelayed).
(c) Buyer shall direct and control, through counsel of its own choosing, any Contest with respect to a taxable period that begins prior to the Closing Date and ends after the Closing (a “Straddle Period”), and Seller shall cooperate in each phase of such Contest. If None of Buyer Parties object to or any action that Stockholder Representative proposes to take Acquired Company may settle or compromise any asserted liability for which Seller would have an indemnification obligation pursuant to this Article 8 without prior written consent of Seller; provided, however, that consent to settlement or compromise shall not be unreasonably withheld, conditioned, or delayed. In any event, Seller may participate, at its own expense, in such Contest to the preceding sentenceextent it could result in an indemnification obligation of Seller pursuant to this Article 8.
(d) Buyer and Seller agree to cooperate, and Buyer Parties shallagrees to cause the Acquired Companies to cooperate, within thirty in the defense against or compromise of any claim in any Contest.
(30e) For purposes of this Agreement, Taxes allocable to the portion of a Straddle Period ending on the Closing Date shall be (i) in the case of any Taxes other than income Taxes, South Dakota Mineral Severance Tax and Taxes based on receipts or sales or that are otherwise transactionally based, deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days after delivery from Stockholder Representative in the taxable period prior to and ending on the Closing Date and the denominator of written notice which is the number of days in the entire Straddle Period, and (ii) in the case of any income Taxes, South Dakota Mineral Severance Tax and Taxes based on receipts or sale or that are otherwise transactionally based, be deemed equal to the amount which would be payable if the relevant Straddle Period ended on the Closing Date, provided that all permitted allowances, credits, exemptions and deductions that are normally computed on the basis of an entire year period (such as depreciation and amortization deductions) shall accrue on a daily basis and shall be allocated between the pre-Closing portion of the intent Straddle Period and the post-Closing portion of the Straddle Period in proportion to take the number of days in each such actionperiod; provided, notify Stockholder Representative in writing however, that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If credits relating to a notice of objection Straddle Period shall be duly delivered, Buyer Parties taken into account as though the relevant taxable period ended on the Closing Date and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts provided that all determinations necessary to resolve such items. If Buyer Parties and Stockholder Representative are unable give effect to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items foregoing allocations shall be resolved by made in a manner consistent with prior practices of the Dispute Advisor and Acquired Companies, except where such practice is not consistent with applicable legal requirements. Notwithstanding the foregoing, any determination by the Dispute Advisor penalty, interest or addition to Tax shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days allocated to the party that bears the liability for the Tax to which such penalty, interest or addition to Tax relates, regardless of having the item referred when such penalty, interest or addition to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeTax is assessed.
Appears in 1 contract
Contests. (a) Buyer Parties and If any Governmental Authority issues to Buyer, the Companies shall promptly forward Company, Holdco or any of their respective Affiliates a written notice of its intent to Stockholder Representative all audit, examine or conduct a proceeding, a written notifications and other communications from any Taxing Authority relating notice of its determination of an objection to an assessment with respect to Taxes or Tax Returns of the Company or Holdco for a Pre-Closing Tax Period or a Straddle Period, or a written notice or inquiry with respect to any Taxes or the filing of a Tax Return (a “Tax Claim”), Buyer shall notify Seller of its receipt of such Tax Claim within five (5) Business Days following receipt; provided however, that the failure of Buyer to notify Seller of its receipt of a Tax Claim within five (5) Business Days shall not relieve Seller from liability pursuant to Section 6.03(a) except to the extent Seller is materially prejudiced as a consequence of the Companies such failure. Seller shall control any Tax Claim and any other matter with respect to a Pre-Closing Tax Period of the Company or any actions Holdco (a “Seller’s Tax Contest”); provided, that with respect to a Seller’s Tax Contest that involves United States federal or Arizona income Taxes (a “Seller’s Consolidated Tax Contest”) Seller shall provide Buyer with any information that Buyer reasonably requests that pertains solely to either the same. The failure of Buyer Parties Company or Holdco and is in connection with the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 Seller’s Consolidated Tax Contest and, provided further, with respect to any a Seller’s Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent Contest that the Indemnifying Party is materially not a Seller’s Consolidated Tax Contest (i),the Buyer, at its sole cost and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from have the Stockholder Representative Expense Amount first right to participate in such Seller’s Tax Contest; and then from the Indemnification Escrow Account without regard to the Deductible(ii) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense Seller shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of settle such Seller’s Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Contest without the Buyer’s prior written consent of Parentconsent, which consent shall not be unreasonably withheld, delayed or conditioned. If , provided that, if Buyer Parties object does not consent to any action that Stockholder Representative proposes the settlement then (a) Buyer shall be obligated to take assume the defense of such Seller’s Tax Contest; and (b) Buyer’s indemnification obligations relating to such Seller’s Tax Contest pursuant to this Agreement (including for the preceding sentence, avoidance of doubt Section 6.03(a)) shall be limited to the amount of Taxes that Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice would have been obligated to indemnify if such Seller’s Tax Contest was resolved in accordance with the terms of the intent proposed settlement. Buyer shall control any Tax Claim that is not a Seller’s Tax Contest (a “Buyer’s Tax Contest”), provided that Seller, at its sole cost and expense, shall have the right to take participate in any Buyer’s Tax Contest that relates to a Straddle Period. Notwithstanding anything in this Agreement to the contrary, Buyer, the Company or Holdco or any of their respective Affiliates shall not resolve, settle, compromise, or abandon any issue or claim without the prior written consent of Seller if such actionaction would result in the imposition of any Pre-Closing Taxes on the Company or Holdco, notify Stockholder Representative as applicable; provided, however, Buyer, the Company, Holdco and their respective Affiliates shall be entitled to enter into such settlement without the consent of Seller so long as Buyer, the Company and Holdco agree in writing that it so objects, specifying with particularity Seller shall not be responsible for or covenant to pay and shall not indemnify the objectionable action Buyer Indemnitees from and stating the specific factual or legal basis for against any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses Pre-Closing Taxes of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeCompany or Holdco resulting from such settlement or action.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Contests. (a) Buyer Parties and If an adjustment shall be proposed by the Companies IRS in writing that, if sustained, would result in a Loss for which Old Dominion could be required to indemnify the Owner Participant under this Agreement, the Owner Participant agrees promptly to notify Old Dominion in writing of such proposed adjustment; PROVIDED, HOWEVER, that any failure to provide such notice shall promptly forward not relieve Old Dominion of any obligation to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability indemnify the Owner Participant hereunder unless such failure effectively precludes the initiation or continuation of the Companies contest of such adjustment. If (i) within 30 days after receipt of such notice Old Dominion shall request in writing that the Owner Participant contest such proposed adjustment and (ii) the Owner Participant shall have received, at the commencement of the contest and before each level of judicial proceeding, an opinion of Independent Tax Counsel, to the effect that there is a Reasonable Basis for contesting the proposed adjustment (and, in the case of an appeal from an adverse judicial determination, an opinion from such counsel to the effect that it is more likely than not) that such adverse determination will be reversed or substantially modified upon appeal in a manner favorable to the taxpayer) (which opinions (a) will be furnished at Old Dominion's expense, and (b) the Owner Participant will assist in good faith and with respect diligence in promptly procuring), the Owner Participant shall contest such proposed adjustment; PROVIDED, HOWEVER, that the Owner Participant may, in its sole discretion, either pay the tax proposed and ▇▇▇ for a refund or contest the proposed adjustment in any permissible forum considering, however, in good faith such requests as Old Dominion may make concerning the most appropriate forum in which to proceed. Notwithstanding the foregoing, the Owner Participant shall not be required to pursue any such contest unless (v) Old Dominion shall have agreed in writing to pay and shall be paying on demand all reasonable costs and expenses that the Owner Participant shall incur in connection with contesting such proposed adjustment, including, without limitation, reasonable attorneys', accountants' and investigatory fees and disbursements; (w) the proposed adjustment that could result in a Prepayment by Old Dominion (if a lump-Closing Tax Period or any actions sum amount were to be paid pursuant to Section 4(b)(2) hereof) in connection with such proposed adjustment, taking into account the amount of all similar and logically related adjustments with respect to the same. The failure transactions contemplated by the Operative Documents that could be raised in an audit of Buyer Parties or any other taxable year of the Companies to deliver such written notice in such period Owner Participant (including any future taxable year) not barred by the statute of limitations shall not affect the rights of an Indemnified Party under Article 7 be at least $100,000 and at least $250,000 with respect to any Tax or Damage directly or indirectly related judicial appeal; (x) no Event of Default shall have occurred and be continuing; and (y) if the Owner Participant shall determine to pay the tax proposed and ▇▇▇ for a refund, Old Dominion shall advance to the subject matter of such written notification or other communication except Owner Participant on an interest-free basis and with no additional net after-tax cost to the Owner Participant sufficient funds to pay the tax and interest, penalties and additions to tax payable with respect thereto (to the extent such amount is indemnified against pursuant to Section 4 hereof (an "Advance")); and PROVIDED, HOWEVER, that the Indemnifying Party is materially and irrevocably prejudiced by Owner Participant shall not be required to pursue any appeal to the failure to provide such written noticeUnited States Supreme Court.
(b) In connection with any proposed adjustment described in Section 6(a) hereof, the Owner Participant shall not make payment of such proposed adjustment for at least 30 days after the giving of written notice of such proposed adjustment to Old Dominion (i) Stockholder Representative (at Stockholders’ expense, which except that if the Owner Participant shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard required by law or regulation to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation take action with respect to any such Tax Matter under Article 7adjustment prior to the end of such 30-day period, including through recovery against the Indemnification Escrow AccountOwner Participant shall, which has not expired or lapsed; providedin such notice to Old Dominion, howeverso inform Old Dominion, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense and the Owner Participant shall not be subject to indemnification under Article 7) reasonable participation rights take any action with respect to such adjustment without the consent of Old Dominion (not unreasonably to be withheld) before the date on which the Owner Participant shall be required by law or regulation to take action). Notwithstanding anything herein to the contrary, the Owner Participant shall have full control over any contest pursuant to this Section 6 and shall determine in its sole discretion the nature of all actions to be taken in connection with any contest including the right to pursue or forego any administrative proceedings; PROVIDED, HOWEVER, that the Owner Participant shall contest such claim at the administrative level if the failure to do so much would preclude the availability of all judicial remedies; and PROVIDED, FURTHER, the Owner Participant shall consult in good faith with Old Dominion and its counsel in the contest of any claim and shall keep such counsel reasonably informed regarding such contest. Nothing contained in this Section 6 shall require the Owner Participant to contest a proposed adjustment that it would otherwise be required to contest pursuant to this Section 6 if the Owner Participant (i) waives the payment by Old Dominion of any amount that might otherwise be payable by Old Dominion under this Agreement by way of indemnity in respect of such Tax Matter proposed adjustment and (ii) pays to Old Dominion any amount of taxes, interest, penalties and additions to tax previously paid or advanced by Old Dominion pursuant to this Agreement with respect to such proposed adjustment, plus interest on such amounts at the IRS rate for refunds, payable from the date of payment by Old Dominion to the Owner Participant of such amounts to (but excluding) the date of repayment of such amounts by the Owner Participant to Old Dominion; PROVIDED, HOWEVER, that if the Owner Participant settles a proposed adjustment such that Old Dominion is reasonably likely to affect the Tax liability precluded as a matter of Buyer Parties law from initiating or the Companies continuing a contest hereunder of any adjustment for any Post-Closing Tax Period. Stockholder Representative other taxable period, the Owner Participant shall not assert be deemed to have waived the payment by Old Dominion under this Agreement of any defenses or claimsindemnity amounts in respect of such other adjustment.
(c) If Old Dominion shall have requested the Owner Participant to contest a proposed adjustment as above provided and shall have duly complied with all the terms of this Section 6, enter into any settlement ofOld Dominion's liability for indemnification due under Section 4 hereof shall, or otherwise compromiseat Old Dominion's election (except for amounts provided for under Section 6(a) hereof), any such Tax Matter that reasonably could adversely affect be deferred until Final Determination of the liability of Buyer Parties or the Companies Owner Participant. At such time, Old Dominion shall become obligated for the payment of any Taxesindemnification due under Section 4 hereof resulting from the outcome of such contest. Upon payment in full by Old Dominion of any indemnity amounts due under this Agreement, as the Owner Participant shall become obligated to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object refund to Old Dominion an amount equal to any action that Stockholder Representative proposes to take pursuant amount received as a refund of income taxes by the Owner Participant or credited to the preceding Owner Participant (including any refund or credit that would have been received but for a counterclaim or other claim not indemnified by Old Dominion hereunder) that is fairly attributable to advances or indemnity payments made by Old Dominion under this Agreement, together with any interest received (or that would have been received) by the Owner Participant on such refund (after reduction by any tax incurred by Owner Participant by reason of the receipt or accrual of such interest), plus an amount equal to any tax benefit realized by the Owner Participant as the result of the payment contemplated by this sentence. Such obligations of the Owner Participant and Old Dominion will first be set off against each other, Buyer Parties shall, and any difference owing by either party shall be paid within thirty (30) 30 days after delivery from Stockholder Representative of written notice of such Final Determination but not prior to the intent to take such action, notify Stockholder Representative date determined in writing that it so objects, specifying accordance with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10Section 4(b) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativehereof.
Appears in 1 contract
Sources: Tax Indemnity Agreement (Old Dominion Electric Cooperative)
Contests. (a) After the Closing, the Buyer Parties and the Companies shall promptly forward to Stockholder Representative all notify Sellers in writing of any written notifications and other communications from any Taxing Authority relating to any Tax liability notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Buyer or of any of the Acquired Companies with respect to a Pre-Closing Tax Period or any actions with respect which, if determined adversely to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party taxpayer, would be grounds for indemnification under this Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed8; provided, however, that Stockholder Representative shall provide a failure to Buyer Parties (at Buyer Parties’ expense, which expense shall give such notice will not be subject affect the Buyer' right to indemnification under this Article 78 except to the extent, if any, that, but for such failure, the Sellers could have avoided all or a portion of the Tax liability in question.
(b) reasonable participation rights In the case of an audit or administrative or judicial proceeding that relates to periods (including a partial period) ending on or before the Closing Date, provided that the Sellers acknowledge in writing their liability under this Agreement to hold the Buyer and the Acquired Companies harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to periods (including a partial period) ending on or before the Closing Date, Sellers shall have the right at their expense to participate in and control (to the extent allowable) the conduct of such audit or proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which the Sellers have acknowledged their liability; the Buyer also may participate in any such audit or proceeding and, if the Sellers do not assume the defense of any such audit or proceeding, the Buyer may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five (5) days' prior written notice to Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which Sellers have acknowledged its liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Buyer would be liable, the Buyer shall have the right, at its expense, to control the audit or proceeding with respect to so much the latter issues.
(c) With respect to issues relating to a potential adjustment for which both, on the one hand, the Sellers (as evidenced by their acknowledgment under this Section 8.2) and, on the other hand, the Buyer or any Acquired Company could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of such the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax Matter periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that is reasonably likely to affect must be decided jointly (including, without limitation, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article 8 by the Tax liability Buyer and the Sellers . - -
(d) Neither the Buyer nor any of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative Sellers shall not assert any defenses or claims, enter into any settlement of, compromise or otherwise compromise, agree to settle any such claim pursuant to any Tax Matter that reasonably could audit or proceeding which would adversely affect the liability of Buyer Parties other party for such year or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, a subsequent year without the prior written consent of Parentthe other party, which consent shall may not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve Buyer and Sellers agree to cooperate, and the Buyer agrees to cause the Acquired Companies to cooperate, in the defense against or compromise of any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeclaim in any audit or proceeding.
Appears in 1 contract
Contests. (ai) Buyer Parties and After the Companies Closing, Denbury shall promptly forward notify the Matrix Common Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Denbury, Matrix or any Affiliate which, if determined adversely to Stockholder Representative all written notifications the taxpayer or after the lapse of time, would be grounds for indemnification by the Matrix Common Shareholders. Such notice shall contain factual information (to the extent known to Denbury) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other communications document received from any Taxing Authority relating authority in respect of any such asserted Tax liability. If Denbury fails to any give the Matrix Common Shareholders prompt notice of an asserted Tax liability, then (i) if the Matrix Common Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, the Matrix Common Shareholders shall not have any obligation to indemnify for any an increase in a Tax liability allocable to the Matrix Common Shareholders as a result of such proceeding, and (ii) if the Companies Matrix Common Shareholders are not so precluded from contesting, but such failure to give prompt notice results in an increase in the Tax liability allocable to the Matrix Common Shareholders as a result of such proceeding then any amount which the Matrix Common Shareholders are otherwise required to pay Denbury with respect to such liability shall be reduced by the amount of such increase in the Tax liability allocable to the Matrix Common Shareholders that was the result of Denbury's failure to give prompt notice to the Matrix Common Shareholders. The failure to give such notice on a timely basis shall not affect the indemnification provisions provided herein except to the extent the Matrix Common Shareholders demonstrate they have been actually prejudiced as a result of such failure and such prejudice resulted in an increase in the Tax liability allocable to the Matrix Common Shareholders.
(ii) Except as otherwise provided herein, Denbury shall direct any audit, claim or refund and administrative or judicial proceeding involving any asserted Tax liability regarding Matrix (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). The Matrix Common Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any Contest of a Pre-Closing Tax Period or Return involving any actions asserted liability with respect to which indemnity may be sought from the sameMatrix Common Shareholders. The failure of Buyer Parties or If the Companies Matrix Common Shareholders elect to deliver such written notice in such period shall not affect direct the rights Contest of an Indemnified Party under Article 7 with respect to any asserted Tax or Damage directly or indirectly related to the subject matter liability of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7Return, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties they shall, within thirty (30) calendar days after delivery from Stockholder Representative of written receipt of the notice of the asserted Tax liability, notify Denbury of their intent to take do so and Denbury shall cooperate and shall cause Matrix and Subsidiaries to cooperate, in each phase of such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objectionContest. If the Matrix Common Shareholders do not elect to direct the Contest of an asserted Tax liability of a notice Pre- Closing Return, fail to notify Denbury of their election as herein provided, or contest their indemnification obligation, Denbury may pay, compromise or contest, at its expense, such asserted liability. Neither Denbury nor the Matrix Common Shareholders may settle or compromise any Contest involving any asserted liability with respect to which indemnity may be sought from the Matrix Common Shareholders over the objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor parties not directing the Contest, provided, however, that consent to settlement or compromise shall not be borne equally by Buyer Parties unreasonably withheld. In any event, both Denbury and Stockholder Representativethe Matrix Common Shareholders may participate, at their own expense, in any Contest involving an asserted Tax liability with respect to which indemnity may be sought from the Matrix Common Shareholders.
Appears in 1 contract
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (In the case of an audit or administrative or judicial proceeding that relates to periods ending at Stockholders’ or before the Effective Time, the GJM Parties shall have the right, at their expense, which shall be paid solely from to participate in and control the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any conduct of such audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent that such audit or proceeding relates solely to a potential adjustment for which the Stockholders GJM Parties have an obligation with respect acknowledged GJM's liability in writing and the issue underlying the potential adjustment does not recur for any period ending subsequent to the Effective Time. The GJM Parties shall keep TPEG fully informed of the progress of any such Tax Matter under Article 7audit or proceeding and, including through recovery against if it appears in the Indemnification Escrow Account, which has not expired or lapsed; provided, howeversole discretion of TPEG, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expensesuch audit or proceeding may adversely affect TPEG or TPEG Sub III, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, TPEG also may participate in any such Tax Matter audit or proceeding. If the GJM Parties do not assume the defense of any such audit or proceeding promptly, TPEG may defend and settle the same (for the GJM Parties' account) in such reasonable manner as it may deem appropriate. In the event that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, a potential adjustment as to which the Stockholders GJM Parties would not be liable hereunderis present in the same proceeding as a potential adjustment for which TPEG or TPEG Sub III would be liable, TPEG shall have the right, at its expense, to control the audit or proceeding with respect to the latter potential adjustment.
(ii) With respect to a potential adjustment for which both GJM and TPEG and/or TPEG Sub III could be liable, or which involves an issue that recurs for any period ending after the Effective Time (whether or not the subject of audit at such time), (i) both the GJM Parties and TPEG may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the dollar amount of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the preceding sentence shall also govern for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in circumstances in which separate issues are otherwise controlled hereunder by TPEG and the GJM Parties.
(iii) Except as provided in clause (i) of this Section 6(e), neither TPEG nor the GJM Parties shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the prior written consent of Parentthe other party, which consent shall may not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Producers Entertainment Group LTD)
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with With respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to Return, the extent Sellers and their duly appointed representatives shall have the Stockholders have an obligation with respect to any such Tax Matter under Article 7sole right, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ their expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, supervise or otherwise compromisecoordinate any examination process and to negotiate, resolve, settle or contest any such asserted Tax Matter that reasonably could adversely affect the liability of Buyer Parties deficiencies or the Companies assert and prosecute any claims for any Taxes, as to which the Stockholders would not be liable hereunderrefund. The foregoing notwithstanding, without the prior express written consent of ParentBuyer, which consent shall not be unreasonably withheld, delayed the Sellers shall not file any amended Tax Return, enter into any agreement, settle any Tax claim or conditioned. If Buyer Parties object assessment, surrender any right to claim a refund of Tax, consent to any extension or waiver of the limitation periods applicable to any Tax claim or assessment, or take any other action that Stockholder Representative proposes if any such action would have the effect of increasing Buyer Tax Liabilities, unless such action is required to take pursuant comply with applicable law.
(ii) With respect to the preceding sentenceany other Tax Return, Buyer Parties and its duly appointed representatives shall have the sole right, at its expense, to supervise or otherwise coordinate any examination process and to negotiate, resolve, settle or contest any asserted Tax deficiencies or assert and prosecute any claims for refund. The foregoing notwithstanding, without the express written consent of the Sellers, which consent shall not be unreasonably withheld, Buyer shall not file any amended Tax Return, enter into any agreement, settle any Tax claim or assessment, surrender any right to claim a refund of Tax, consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, or take any other action if any such action would have the effect of increasing the Seller Tax Liabilities, unless such action is required to comply with applicable law.
(iii) Each party hereto shall, within thirty twenty (3020) days after delivery from Stockholder Representative of written notice (unless action is required sooner, then as soon as practicable), notify the other of the intent to take such assertion of any claim or the commencement of any suit, action, notify Stockholder Representative in writing proceeding, investigation or audit with respect to the operations of KVT that it so objectsis the subject of this Paragraph 3(g)(iii), specifying and shall provide the other party with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice copies (subject to deletion of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10irrelevant information) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant all correspondence relating to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativecontest.
Appears in 1 contract
Contests. (a) Buyer Parties and If an adjustment shall be proposed by the Companies IRS in writing that, if sustained, would result in a Loss for which Old Dominion could be required to indemnify the Owner Participant under this Agreement, the Owner Participant agrees promptly to notify Old Dominion in writing of such proposed adjustment; PROVIDED, HOWEVER, that any failure to provide such notice shall promptly forward not relieve Old Dominion of any obligation to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability indemnify the Owner Participant hereunder unless such failure precludes or materially adversely effects the initiation or continuation of the Companies contest of such adjustment. If (i) within 90 days after receipt of such notice Old Dominion shall request in writing that the Owner Participant contest such proposed adjustment and (ii) the Owner Participant shall have received, at the commencement of the contest and before each level of judicial proceeding, an opinion of Independent Tax Counsel, to the effect that there is a Reasonable Basis for contesting the proposed adjustment (and, in the case of an appeal from an adverse judicial determination, an opinion from such counsel to the effect that there is a substantial possibility (which is a higher standard than Reasonable Basis, although it is not necessarily more likely than not) that such adverse determination will be reversed or substantially modified upon appeal in a manner favorable to the taxpayer) (which opinions (a) will be furnished at Old Dominion's expense, and (b) the Owner Participant will assist in good faith and with respect diligence in promptly procuring), the Owner Participant shall contest such proposed adjustment; PROVIDED, HOWEVER, that the Owner Participant may, in its sole discretion, either pay the tax proposed and ▇▇▇ for a refund or contest the proposed adjustment in any permissible forum considering, however, in good faith such requests as Old Dominion may make concerning the most appropriate forum in which to proceed. Notwithstanding the foregoing, the Owner Participant shall not be required to pursue any such contest unless (v) Old Dominion shall have agreed in writing to pay and shall pay on demand all reasonable costs and expenses that the Owner Participant shall incur in connection with contesting such proposed adjustment, including, without limitation, reasonable attorneys', accountants' and investigatory fees and disbursements; (w) the proposed adjustment that could result in a Prepayment by Old Dominion (if a lump-Closing Tax Period or any actions sum amount were to be paid pursuant to Section 4(b)(2) hereof) in connection with such proposed adjustment, taking into account the amount of all similar and logically related adjustments with respect to the same. The failure transactions contemplated by the Operative Documents that could be raised in an audit of Buyer Parties or any other taxable year of the Companies to deliver such written notice in such period Owner Participant (including any future taxable year) not barred by the statute of limitations shall not affect the rights of an Indemnified Party under Article 7 be at least $100,000 and at least $250,000 with respect to any Tax judicial appeal; (x) no Payment Default or Damage directly or indirectly related Event of Default shall have occurred and be continuing; and (y) if the Owner Participant shall determine to pay the tax proposed and ▇▇▇ for a refund, Old Dominion shall advance to the subject matter of such written notification or other communication except Owner Participant on an interest-free basis and with no additional net after-tax cost to the Owner Participant sufficient funds to pay the tax and interest, penalties and additions to tax payable with respect thereto (to the extent such amount is indemnified against pursuant to Section 4 hereof (an "Advance")); and PROVIDED, HOWEVER, that the Indemnifying Party is materially and irrevocably prejudiced by Owner Participant shall not be required to pursue any appeal to the failure to provide such written noticeUnited States Supreme Court.
(b) The Owner Participant also shall not be required to contest any proposed adjustment if the subject matter thereof shall be of a continuing nature and there shall have been a Final Determination with respect thereto, unless there shall have been a change in facts or law (including, without limitation, amendments to statutes or Treasury Regulations, administrative rulings and court decisions), and the Owner Participant shall have received an opinion of Independent Tax Counsel (which opinion (i) Stockholder Representative (will be furnished at Stockholders’ Old Dominion's expense, and (ii) the Owner Participant will assist in good faith and with diligence in promptly procuring) to the effect that as the result of such change in facts or law there is a substantial possibility (which is a higher standard than Reasonable Basis, although it is not necessarily more likely than not) that the Owner Participant will prevail in the contest of such proposed adjustment.
(c) In connection with any proposed adjustment described in Section 6(a) hereof, the Owner Participant shall not make payment of such proposed adjustment for at least 30 days after the giving of written notice of such proposed adjustment to Old Dominion (except that if the Owner Participant shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard required by law or regulation to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation take action with respect to any such Tax Matter under Article 7adjustment prior to the end of such 30-day period, including through recovery against the Indemnification Escrow AccountOwner Participant shall, which has not expired or lapsed; providedin such notice to Old Dominion, howeverso inform Old Dominion, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense and the Owner Participant shall not be subject to indemnification under Article 7) reasonable participation rights take any action with respect to so much such adjustment without the consent of Old Dominion (not unreasonably to be withheld) before the date on which the Owner Participant shall be required to take action). Notwithstanding anything herein to the contrary, the Owner Participant shall have full control over any contest pursuant to this Section 6 and shall determine in its sole discretion the nature of all actions to be taken in connection with any contest including the right to pursue or forego any administrative proceedings; PROVIDED, HOWEVER, that the Owner Participant shall contest such claim at the administrative level if such action shall be necessary to preserve available judicial remedies; and PROVIDED, FURTHER, the Owner Participant shall consult in good faith with Old Dominion and its counsel in the contest of any claim and shall keep such counsel reasonably informed regarding such contest. Nothing contained in this Section 6 shall require the Owner Participant to contest a proposed adjustment that it would otherwise be required to contest pursuant to this Section 6 if the Owner Participant (i) waives the payment by Old Dominion of any amount that might otherwise be payable by Old Dominion under this Agreement by way of indemnity in respect of such Tax Matter proposed adjustment and (ii) pays to Old Dominion any amount of taxes, interest, penalties and additions to tax previously paid or advanced by Old Dominion pursuant to this Agreement with respect to such proposed adjustment, plus interest on such amounts at the IRS rate for refunds, payable from the date of payment by Old Dominion to the Owner Participant of such amounts to (but excluding) the date of repayment of such amounts by the Owner Participant to Old Dominion; PROVIDED, HOWEVER, that if the Owner Participant settles a proposed adjustment such that Old Dominion is reasonably likely to affect the Tax liability precluded as a matter of Buyer Parties law from initiating or the Companies continuing a contest hereunder of any adjustment for any Post-Closing Tax Period. Stockholder Representative other taxable period, the Owner Participant shall not assert be deemed to have waived the payment by Old Dominion under this Agreement of any defenses or claimsindemnity amounts in respect of such other adjustment.
(d) If Old Dominion shall have requested the Owner Participant to contest a proposed adjustment as above provided and shall have duly complied with all the terms of this Section 6, enter into any settlement ofOld Dominion's liability for indemnification due under Section 4 hereof shall, or otherwise compromiseat Old Dominion's election (except for amounts provided for under Section 6(a) hereof), any such Tax Matter that reasonably could adversely affect be deferred until Final Determination of the liability of Buyer Parties or the Companies Owner Participant. At such time, Old Dominion shall become obligated for the payment of any Taxesindemnification due under Section 4 hereof resulting from the outcome of such contest. Upon payment in full by Old Dominion of any indemnity amounts due under this Agreement, as the Owner Participant shall become obligated to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object refund to Old Dominion an amount equal to any action that Stockholder Representative proposes to take pursuant amount received as a refund of income taxes by the Owner Participant or credited to the preceding Owner Participant (including any refund or credit that would have been received but for a counterclaim or other claim not indemnified by Old Dominion hereunder) that is fairly attributable to advances or indemnity payments made by Old Dominion under this Agreement, together with any interest received (or that would have been received) by the Owner Participant on such refund, plus an amount equal to any tax benefit realized by the Owner Participant as the result of the payment contemplated by this sentence. Such obligations of the Owner Participant and Old Dominion will first be set off against each other, Buyer Parties shall, and any difference owing by either party shall be paid within thirty (30) 30 days after delivery from Stockholder Representative of written notice of such Final Determination but not prior to the intent to take such action, notify Stockholder Representative date determined in writing that it so objects, specifying accordance with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10Section 4(b) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativehereof.
Appears in 1 contract
Sources: Tax Indemnity Agreement (Old Dominion Electric Cooperative)
Contests. (a) Buyer Parties and After the Companies Closing, Parent shall promptly forward to Stockholder Representative all notify the Stockholders in writing of any written notifications and other communications from any Taxing Authority relating to any Tax liability notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of Parent or of the Companies with respect to a Pre-Closing Tax Period or any actions with respect Company which, if determined adversely to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party taxpayer, would be grounds for indemnification under this Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedVIII; provided, however, that Stockholder Representative shall provide a failure to Buyer Parties give such notice will not affect Parent's right to indemnification under this Article VIII except to the extent, if any, that, but for such failure, the Stockholders could have avoided all or a portion of the Tax liability in question.
(at Buyer Parties’ expenseb) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing and provided that the Stockholders acknowledge in writing their liability under this Agreement to hold Parent and the Company harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to periods ending on or before the Closing (or, which expense shall not be in the case of any taxable year that includes the Closing, against an adjustment allocable under Section 8.01 to the portion of such year ending on or before the Closing Date) and is subject to indemnification under Article 7) reasonable participation rights Section 7.01, the Stockholders shall have the right at their expense to participate in and control the conduct of such audit or proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which the Stockholders have acknowledged their liability; Parent also may participate in any such audit or proceeding and, if the Stockholders do not assume the defense of any such audit or proceeding, Parent may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Stockholders setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Stockholders have acknowledged their liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which Parent would be liable, Parent shall have the right, at its expense, to control the audit or proceeding with respect to so much of such Tax Matter that is reasonably likely the latter issues.
(c) With respect to affect issues relating to a potential adjustment for which both the Tax liability of Buyer Parties Stockholders (as evidenced by its acknowledgment under this Section 8.04) and Parent or the Companies Company could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any Post-Closing Tax Period. issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VIII by Parent and the Stockholders.
(d) Neither Parent nor any Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, compromise or otherwise compromise, agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affectthe other party for such Tax Matter that reasonably could adversely affect the liability of Buyer Parties year or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, a subsequent year without the prior written consent of Parentthe other party, which consent shall may not be unreasonably withheld. Parent and the Stockholders agree to cooperate, delayed and Parent agrees to cause the Company to cooperate, in the defense against or conditioned. If Buyer Parties object to compromise of any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative claim in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual any audit or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeproceeding.
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Contests. (a) Buyer Parties and Seller shall have the Companies shall promptly forward right to Stockholder Representative all written notifications and other communications from control the conduct of any Taxing Authority relating audit or administrative or judicial proceeding with respect to any consolidated federal income Tax liability of Return (or similar combined, consolidated or unitary state income Tax Return) that includes Seller or the Companies with respect to a taxable period of the Companies ending on or before the Closing Date (a “Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written noticeConsolidated Audit”).
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard With respect to the Deductible) shall control any audit or examination by any taxing authority administrative or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (eachother than a Pre-Closing Consolidated Audit), Purchaser shall promptly notify Seller in writing upon receipt by any of the Companies of a written notice of any audit or administrative or judicial proceeding with respect to Taxes of any of the Companies which Seller may have liability (a “Tax MatterContest Claim”); provided, however, no failure or delay by Purchaser to provide notice of a Tax Contest Claim shall reduce or otherwise affect the obligation of Seller hereunder except to the extent Seller is actually prejudiced thereby. Purchaser and Seller shall cooperate with each other in the conduct of any Tax Contest Claim. Seller shall have the right to control the conduct of any Tax Contest Claim for a period that ends on or prior to the Closing Date (a “Pre-Closing Tax Claim”) if Seller provides Purchaser with notice of its election to control such claim within thirty (30) days of Purchaser notifying Seller of such Tax Contest Claim, provided if the resolution of such Pre-Closing Tax Claim could reasonably be expected to have an adverse effect on Purchaser or any of the Companies for a period that ends after the Closing Date then: (i) Seller shall keep Purchaser informed regarding the progress and substantive aspects of such Pre-Closing Tax Claim, (ii) Purchaser shall be entitled to participate in any Pre-Closing Tax Period Claim and (but for this purpose excluding any Straddle Periodiii) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense Seller shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties compromise or the Companies for settle any PostPre-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Claim without the prior written consent of Parentobtaining Purchaser’s consent, which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed. If Buyer Parties object Seller does not elect to control a Pre-Closing Tax Claim within the time period set forth above, then Purchaser shall be entitled to control all aspects of such claim.
(c) With respect to any action Tax Contest Claim for a period that Stockholder Representative proposes to take pursuant to begins before and ends after the preceding sentenceClosing Date (a “Straddle Tax Claim”), Buyer Parties shallPurchaser shall control such claim, within thirty provided that (30A) days after delivery from Stockholder Representative Purchaser shall keep Seller informed regarding the progress and substantive aspects of written notice of the intent to take such actionStraddle Tax Claim, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection (B) Seller shall be duly deliveredentitled to participate in any Straddle Tax Claim and (C) Purchaser shall not compromise or settle a Straddle Tax Claim without obtaining Seller’s consent, Buyer Parties and Stockholder Representative which consent shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such noticenot be unreasonably withheld, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeconditioned or delayed.
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Contests. (a) Buyer Parties and the Companies shall promptly forward agrees to Stockholder Representative all give prompt written notifications and other communications from any Taxing Authority relating notice to any Tax liability Seller of the Companies with respect to a Pre-Closing Tax Period receipt of any notice by the Company, Buyer or any actions with respect to the same. The failure of Buyer Parties Buyer’s Affiliates of any pending or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expensethreatened claim, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxesaudit, notice of Tax deficiency deficiency, examination, assessment, or other adjustment proceeding, for which Seller is liable under this ARTICLE VI or which involves the assertion of Taxes any claim, or the commencement of any Action against or that could reasonably be expected to give rise to a Tax liability that could be imposed on the Companies Company, Buyer or their Affiliates, in respect of which an indemnity may be sought by Buyer pursuant to this ARTICLE VI (each, a “Tax MatterClaim”) for ). Seller shall control the contest or resolution of any Tax Claim related to any Pre-Closing Tax Period (but for this purpose excluding any other than a Straddle Period) but only to and, without limiting the extent the Stockholders have an obligation foregoing, may in its sole discretion, pursue or forgo any and all administrative appeals, proceedings, hearing and conferences with respect to any Governmental Authority taken in connection thereof. If such Tax Matter under Article 7, including through recovery against Claim would reasonably be expected to have the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much effect of such Tax Matter that is reasonably likely to affect increasing the Tax liability or reducing a Tax asset of Buyer Parties Buyer, the Company or the Companies for their Affiliates in respect of any Post-Closing Tax Period. Stockholder Representative Period or could be imposed on the Company, Buyer or their Affiliates post-Closing, Seller shall not assert keep Buyer timely informed with respect to any defenses or claimsimpending settlement, enter into any settlement of, or otherwise compromise, compromise and/or concession of any such Tax Matter that Claim and Buyer shall have the right, directly or through its designated Representatives, to review in advance and comment upon all material submissions (to the extent such relate to the Company) made in the course of such Tax Claim, which Seller shall consider in good faith, and otherwise reasonably participate in such Tax Claim (at Buyer’s sole cost and expense) and the Seller shall not settle or otherwise dispose of any such Tax Claim, solely to the extent the settlement or disposition relates to the Company and could adversely affect the liability of Company (or Buyer’s or their Affiliates) post-Closing Taxes or could be imposed on the Company, Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereundertheir Affiliates post-Closing, without the prior written consent of Parentthe Buyer, which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed. If Buyer Parties object shall control any other Tax Claim; provided, Buyer shall keep the Seller timely informed with respect to any action that Stockholder Representative proposes impending settlement, compromise and/or concession of any such Tax Claim and Seller shall have the right, directly or through its designated Representatives, to take pursuant review in advance and comment upon all material submissions made in the course of such Tax Claim, which Buyer shall consider in good faith. For the avoidance of doubt, and not withstanding anything to the preceding sentencecontrary in this Agreement, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent shall not have any right to take such action, notify Stockholder Representative participate in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If Tax Claim related to a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeSeller Consolidated Return.
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Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder The ▇▇▇▇▇ Representative (at Stockholders’ expense, which and its duly appointed representatives shall be paid solely from have the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard authority to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxesauthority, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect or relating to any such Tax Matter under Article 7liability of ▇▇▇▇▇ and its subsidiaries for all ▇▇▇▇▇ PRE-CLOSING Periods; PROVIDED, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, howeverHOWEVER, that Stockholder neither the ▇▇▇▇▇ Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much nor any duly appointed representative of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder ▇▇▇▇▇ Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereundershall, without the prior written consent of UbiquiTel Parent, which consent shall not be unreasonably withheld, delayed enter into any settlement of any contest or conditionedotherwise compromise any issue that would have a material adverse effect on the Tax benefits of UbiquiTel Parent or ▇▇▇▇▇ or any subsidiary for taxable years ending after the CLOSING DATE. If Buyer Parties object UbiquiTel Parent and its duly appointed Representatives shall have the exclusive authority to control any audit or examination by any taxing authority, initiate any claim for refund, amend any Tax Return and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any action liability of ▇▇▇▇▇ and its subsidiaries for Taxes for any taxable year or other taxable period ending after the CLOSING DATE (the "POST-CLOSING PERIODS"); PROVIDED, HOWEVER, that Stockholder Representative proposes to take pursuant to the preceding sentence(a) none of UbiquiTel Parent, Buyer Parties ▇▇▇▇▇, its subsidiaries nor any of their duly appointed representatives shall, within thirty (30) days after delivery from Stockholder Representative of without the prior written notice consent of the intent to take such action▇▇▇▇▇ Representative, notify Stockholder Representative in writing enter into any settlement of any contest or otherwise compromise any issue that it so objects, specifying with particularity adversely affects the objectionable action and stating liability of the specific factual or legal basis ▇▇▇▇▇ Stockholders for any such objection. If a notice ▇▇▇▇▇ PRE-CLOSING Period Taxes, and (b) none of objection shall be UbiquiTel Parent, ▇▇▇▇▇, its subsidiaries nor any of their duly deliveredappointed representatives shall, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative without the prior consent of such noticethe ▇▇▇▇▇ Representative, the disputed items shall be resolved enter into any settlement of any contest or otherwise compromise any issue that would require payment by the Dispute Advisor Controlling ▇▇▇▇▇ Stockholders (as defined herein) of any amount under this Agreement unless UbiquiTel Parent shall have waived or caused to be waived for itself and ▇▇▇▇▇ and its subsidiaries any determination by right to indemnification for Taxes from the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeControlling ▇▇▇▇▇ Stockholders.
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Contests. (a) Buyer Parties and If a claim shall be made by any Taxing Authority that, if successful, would result in the Companies indemnification of a party (the “Tax Indemnified Party”) under this Article VII, the Tax Indemnified Party shall promptly forward notify the party (the “Tax Indemnifying Party”) obligated under this Article VII to Stockholder Representative all written notifications indemnify the Tax Indemnified Party in writing of such fact; otherwise, the Tax Indemnifying Party shall be released from any indemnification obligations with respect to such claim to the extent the Tax Indemnifying Party is actually prejudiced by such failure to notify or delay in notification. Such notice shall contain factual information (to the extent known to the Tax Indemnified Party) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other communications document received from any Taxing Authority relating to any in respect of such asserted Tax liability liability.
(b) In the case of the Companies a claim or assessment with respect to Tax by a Taxing Authority or in the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to a Pre-Closing Tax Taxable Period or otherwise to a matter for which ABB is primarily liable under Section 7.01 or 7.02, ABB shall have the sole right, at its expense, to control the conduct of such Contest provided ABB acknowledges its liability. Purchaser and ABB agree to cooperate, and Purchaser agrees to cause the relevant OGP Purchasers and OGP Subsidiaries to cooperate, in the defense against or compromise of any actions claim in any audit or proceeding, including by executing appropriate powers of attorney empowering ABB Representatives. Notwithstanding the foregoing, (i) ABB shall not agree to any settlement concerning Taxes with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow AccountTaxable Periods, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties would materially disadvantage Purchaser or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, OGP Subsidiaries without the prior written consent of Parentthe Purchaser, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object and (ii) Purchaser shall not agree to any action that Stockholder Representative proposes settlement concerning Taxes with respect to take pursuant Pre-Closing Taxable Periods which would materially disadvantage ABB without the prior written consent of ABB, which shall not be unreasonably withheld. Each of ABB and Purchaser shall have the right to be kept fully informed of any material developments and receive copies of all correspondence and shall have the preceding sentenceright to observe the conduct of any Tax Contest (through attendance at meetings) at its own expense, Buyer Parties shallincluding through its own counsel and other professional experts. In a case of a Contest relating to a Straddle Period, within thirty (30i) days after delivery from Stockholder Representative each of written notice Purchaser and ABB may participate in such Contest at its own expense, and (ii) whichever of Purchaser and ABB would be liable for the intent to take greatest amount of Tax asserted in such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If Contest (determined on a notice of objection present value basis) shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts entitled to resolve control such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeContest.
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Contests. (a) After the Closing, Buyer Parties and or Stockholders, as the Companies case may be, shall promptly forward to Stockholder Representative all written notifications and notify the other communications from Party in writing of the commencement of any Taxing Authority relating to audit, examination or proceeding or of any claim or other proposed change or adjustment of which it or any of its Affiliates has been informed in writing by any Tax authority which, if determined adversely to the taxpayer, may result in liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified other Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies VII (each, a “"Tax Matter”Claim") for describing in reasonable detail the nature of the Tax Claim and including copies of any Pre-Closing notices or other documents received from the Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedauthority; provided, however, that Stockholder Representative shall provide the failure to Buyer Parties (at Buyer Parties’ expense, which expense shall timely give such notice will not be subject affect the indemnified party's right to indemnification under Article 7VII except to the extent the indemnifying party is materially prejudiced by such delay or omission.
(b) reasonable participation rights with respect In the case of a Tax Claim that relates to so much Tax periods ending on or before the Closing Date, Stockholders shall have the right at their expense to participate in and control the conduct of any audit or proceeding, but only to the extent that such audit or proceeding relates to a potential adjustment for which Stockholders may be liable; Buyer also may participate in any such audit or proceeding. If Stockholders do not assume the defense of any such audit or proceeding within 30 business days after Buyer gives written notice of such Tax Matter Claim to the Stockholders, Buyer may defend the same in such manner as it may deem appropriate.
(c) In the case of a Tax Claim that is reasonably likely relates to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing an Interim Tax Period. Stockholder Representative , the Parties shall not assert jointly control any defenses audit or claimsproceeding, enter into any and there shall be no settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, with respect thereto without the prior written consent of Parentboth such parties, which consent shall not unreasonably be unreasonably withheld.
(d) In the event that issues relating to a potential adjustment for which Stockholders may be liable are required to be dealt with in the same audit or proceeding as separate issues relating to a potential adjustment for which Buyer may be liable, delayed Stockholders shall have the right, at their expense, to control the audit or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant proceeding with respect to the preceding sentenceformer issues, and Buyer Parties shallshall have the right, within thirty (30) days after delivery from Stockholder Representative of written notice of at its expense, to control the intent audit or proceeding with respect to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativelatter issues.
Appears in 1 contract
Contests. (a) Buyer Parties and the Companies shall promptly forward Parent agrees to give prompt written notice to Stockholder Representative all of the receipt of any written notifications and other communications from notice by the Company, Parent or any Taxing Authority of Parent’s Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity may be sought by Parent pursuant to this ARTICLE VI or which could otherwise result in material Losses to the parties represented by the Stockholder Representative (a “Tax Claim”); provided that any failure to comply with this provision shall reduce Parent’s right to indemnification hereunder only to the extent it adversely affects the ability of the of the Stockholder Representative to contest any Tax Claim relating to such notice. Stockholder Representative (on behalf of the Stockholders, Optionholders and Warrantholders) shall be entitled, at its election, to control the contest or resolution of any Tax liability of the Companies with respect Claim relating entirely to a Taxes attributable to Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedPeriods; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with keep Parent informed in all material respect to so much of the statue of such Tax Matter Claim; and provided, further, that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without obtain the prior written consent of Parent, the Parent (which consent shall not be unreasonably withheldwithheld or delayed) before entering into any settlement of a claim or ceasing to defend such claim and; provided further, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection Parent shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate entitled to participate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative the defense of such noticeclaim and to employ counsel of its choice for such purpose, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor which separate counsel shall be borne equally solely by Buyer Parties Parent. Parent shall control the contest or resolution of any Tax Claim that Stockholder Representative does not control under this Section 6.06; provided, that Parent shall keep Stockholder Representative informed in all material respect to the status of such Tax Claim; and provided, further, that Parent shall obtain the prior written consent of the Stockholder RepresentativeRepresentative (which consent shall not be unreasonably withheld or delayed) before entering into any settlement of a claim or ceasing to defend such claim and; provided further, that the Stockholder Representative shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Stockholder Representative (on behalf of the Stockholders, Optionholders and Warrantholders).
Appears in 1 contract
Contests. (ai) Buyer Parties and will immediately notify Sellers in writing of any proposed assessment or claim or the Companies shall promptly forward commencement of any Tax Proceeding which, if determined adversely, could result in a liability to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Sellers under this Agreement or which could cause an adjustment in the Tax liability of Sellers or their Affiliates. Sellers will immediately notify Buyer in writing of any proposed assessment or claim or the Companies with respect commencement of any Tax Proceeding which, if determined adversely, could affect the determination of Taxes to a Prewhich the Company may be subject in or for Post-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except Periods, but only to the extent that Sellers are notified thereof. In each case, such notice shall contain factual information to the Indemnifying Party is materially extent known, describing the asserted Tax liability in reasonable detail, and irrevocably prejudiced by the failure to provide shall include copies of any notice or other document received from any Tax authority in respect of any such written noticeasserted Tax liability.
(bii) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from In the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard case of a Tax Proceeding that relates to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only , Sellers will have the right at their own expense to control the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much conduct of such Tax Matter that is reasonably likely to affect Proceeding including settling or compromising the issue or matter except if such settlement or compromise affects the Tax liability of Buyer Parties or the Companies Company for any Post-Closing Tax Period. Stockholder Representative , in which case no settlement or compromise shall be made without the consent of Buyer, which shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any be unreasonably withheld. If Sellers elect to direct such Tax Matter that reasonably could adversely affect Proceeding, Sellers shall, within 30 days of its becoming aware of any Tax Proceeding, notify Buyer of Sellers' intent to do so, and Buyer shall cooperate and shall cause the liability Company to fully cooperate, at Sellers' expense, in each phase of the Tax Proceeding. If Sellers elect not to direct such Tax Proceeding, Buyer Parties or the Companies for any TaxesCompany, as to which applicable, may assume control of such Tax Proceeding (at Buyer's expense); provided, however, in such case, Buyer shall provide Sellers with a timely and reasonably detailed account of each phase of the Stockholders would not be liable hereunderTax Proceeding, and neither Buyer nor the Company may settle or compromise any asserted liability without the prior written consent of ParentSellers, which consent shall not be unreasonably withheld. In any event, delayed Sellers may participate, at their own expense, in any Tax Proceeding related to any Pre-Closing Tax Period, and Buyer may participate, at its own expense, in any Tax Proceeding related to any Taxes which could affect the determination of Taxes to which the Company may be subject in or conditionedfor any Post-Closing Tax Period.
(iii) In the case of any Tax Proceeding that relates to any Tax for any Straddle Period, Sellers may elect to direct and control, through counsel of their own choosing, such audit or Proceeding, except that Sellers may not settle or compromise the issue or matter if such settlement or compromise affects the Tax liability of the Straddle Period allocated to the Company under Section 6.04(d), without the consent of Buyer, which shall not be unreasonably withheld. If Buyer Parties object Sellers elect to any action that Stockholder Representative proposes to take pursuant to the preceding sentencedirect such Tax Proceeding, Buyer Parties Sellers shall, within thirty (30) 30 days after delivery from Stockholder Representative of written notice their becoming aware of any such Tax Proceeding, notify Buyer of Sellers' intent to do so, and Buyer shall cooperate and shall cause the Company to fully cooperate, at Sellers' expense, in each phase of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objectionTax Proceeding. If a notice of objection shall be duly deliveredSellers elect not to direct such Tax Proceeding, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative or the Company, as applicable, may assume control of such noticeTax Proceeding (at Buyer's expense); provided, the disputed items however, in such case, Buyer shall be resolved by the Dispute Advisor provide Sellers with a timely and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days reasonably detailed account of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses each phase of the Dispute Advisor Tax Proceeding, and neither Buyer nor the Company may settle or compromise any asserted liability without the prior written consent of Sellers, which shall not be borne equally by unreasonably withheld. In any event, Sellers may participate, at their own expense, in any Tax Proceeding related to a Straddle Period. Except as provided otherwise in this Section 6.04(g), Buyer Parties will control, at its own expense, any and Stockholder Representativeall Tax Proceedings of the Company.
Appears in 1 contract
Sources: Stock Purchase Agreement (Watts Water Technologies Inc)
Contests. Buyer agrees to give prompt notice to Seller of any proposed adjustment to Taxes payable by Symphony or any of its Subsidiaries (aother than income Taxes includible in a consolidated or combined Tax Return of Seller) for periods ending on or prior to the Closing Date (other than income Taxes includable on a consolidated or combined Tax Return of Seller) or any Pre-Closing Partial Period. Seller shall give Buyer Parties prompt notice of any proposed adjustments in income Taxes of Symphony includable on a consolidated or combined Tax Return of Seller. Buyer and Seller shall cooperate with each other in the Companies conduct of any audit or other proceeding involving Symphony or and of its Subsidiaries for such periods and each party may participate at its own expense. Seller shall promptly forward have the right to Stockholder Representative all written notifications control the conduct of any such audit or proceeding for which Seller agrees in writing that any resulting Tax allocable to any period prior to and other communications from including the Closing Date is covered by the indemnity set forth in Section 10.1 of this Agreement, (such audit or proceeding, a "Sellers' Contest"), provided that: (i) Seller shall keep Buyer informed regarding the progress and substantive aspects of any Taxing Authority relating to Sellers' Contest and (ii) Seller shall not compromise or settle any Sellers' Contest if such compromise or settlement would have the effect of (x) increasing any Tax liability of the Companies with respect to a Pre-Closing Tax Period Symphony or any actions with respect to the same. The failure of Buyer Parties its Subsidiaries or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is (y) otherwise materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control adversely affect any audit item or examination by any taxing authority Tax attribute of Symphony or any other judicial or administrative proceeding with respect to Taxesof its Subsidiaries, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) in each case for any Pre-taxable period ending after the Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunderDate, without the prior written consent of Parentobtaining Buyer's consent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object Seller chooses to any action that Stockholder Representative proposes to take pursuant to the preceding sentencedirect a Sellers' Contest, Buyer Parties shallshall cause powers of attorney authorizing Seller's designee to represent Symphony and its Subsidiaries before the relevant taxing authority and such other documents as are reasonably necessary for Seller to control the conduct of any Sellers' Contest, within thirty (30) days after delivery from Stockholder Representative consistent with the terms of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativethis Section 10.5.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Leucadia National Corp)
Contests. Tenant shall have the right, after at least ten (a10) Buyer Parties days prior written notice to Landlord (or such shorter period as may be required at Law in order to preserve the right to do so), to contest the amount or validity of any Imposition or Law or lien by appropriate proceedings conducted in good faith and with due diligence, at its sole cost and expense. If Tenant has not yet made the Companies Minimum Investment, or deposited into escrow under terms and conditions reasonably satisfactory to Landlord the amount by which the Minimum Investment then exceeds the Investment, then, Tenant shall promptly forward furnish to Stockholder Representative all written notifications Landlord security reasonably satisfactory to Landlord against any claim, loss, liability or expense incurred as a result of such nonpayment or delay therein. In the event of any such contest, if the final determination thereof is adverse to Tenant, then Tenant shall pay fully the amounts involved in such contest, together with any penalties, fines, interests, costs and other communications expenses that may have accrued thereon or that may result from any Taxing Authority relating such contest by Tenant, and after such payment by Tenant, Landlord will promptly return to Tenant such security as Landlord shall have received in connection with such contest, unless such adverse determination results directly from or is otherwise directly related to Landlord's failure to comply with its obligations under this Lease, or Landlord's negligence or misconduct, in which event, Landlord shall immediately after written notice of such adverse determination return such deposit to Tenant. Landlord shall join in any such proceeding if any Law now or hereafter in effect shall require that such proceedings be brought by and/or in the name of Landlord or any owner of the Private Parcel. Neither Landlord nor the Private Parcel shall be subjected to any Tax liability for the payment of the Companies any costs, fees, including attorneys' fees, or expenses in connection with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication proceeding (except to the extent that the Indemnifying Party such adverse determination results from or is materially otherwise related to Landlord's failure tocomply with its obligations under this Lease, or Landlord's negligence or misconduct). Tenant shall be entitled to any refund of any such Imposition and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expensepenalties or interest thereon, which shall be have been paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) by Tenant or paid by Landlord, for which Landlord shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativebeen fully reimbursed.
Appears in 1 contract
Sources: Parcel Lease (Premier Parks Inc)
Contests. (a) Buyer Parties The Sellers and their duly appointed representatives shall have the Companies shall promptly forward exclusive authority to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or authority, to initiate any other judicial or administrative proceeding with respect claim for refund, to Taxes, amend any Tax return and to contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any liability of the Companies (each, a “Target or its Subsidiaries for Taxes reflected on any Tax Matter”) for returns covering any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7Periods; PROVIDED, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, howeverHOWEVER, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7a) reasonable participation rights with respect to so much neither the Sellers nor any of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereundertheir duly appointed representatives shall, without the prior written consent of Parentthe Buyer, which consent shall not be unreasonably withheld, delayed file any claim for refund, amend any Tax return or conditionedenter into any settlement of any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Buyer or any of its Affiliates for any Tax period beginning after the Closing Date (a "POST-CLOSING PERIOD") or any portion of an Overlap Period beginning after the Closing Date, and (b) neither the Sellers nor any of their duly appointed shall, without the prior consent of the Buyer, which consent shall not unreasonably be withheld, enter into any settlement of any contest or otherwise compromise any issue that would increase any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Buyer of any amount under Section 9.3 unless the Sellers shall have agreed to indemnify the Buyer for payment of such Taxes. If Buyer Parties object and its duly appointed representatives shall have the exclusive authority to control any audit or other proceeding relating to Taxes for any taxable year or other the Closing Date; PROVIDED, HOWEVER, that (a) neither Buyer, the Target nor any of their duly appointed representatives shall, without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, enter into any settlement of any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Sellers or any of their affiliates for any Pre-Closing Period or any portion of the Overlap Period ending on the Closing Date, and (b) neither Buyer, the Target nor any of their duly appointed representatives shall, without the prior consent of the Sellers, which consent shall not unreasonably be withheld, enter into any settlement of any contest or otherwise compromise any issue that would reduce any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Sellers of any amount under Section 9.3 unless Buyer shall have waived or caused to be waived for itself and the Target any right to indemnification for Taxes from the Sellers. The Sellers shall be entitled to any action that Stockholder Representative proposes to take pursuant Tax refund relating to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice Target and its Subsidiaries to the extent such Tax refund relates to any Pre-Closing Period or any portion of the intent to take Overlap Period ending on the Closing Date, unless such action, notify Stockholder Representative refund has been recorded as an Asset on the Closing Balance Sheet in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection which case Buyer shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeentitled thereto.
Appears in 1 contract
Contests. (a) Buyer Parties and the Companies shall promptly forward Buyers agrees to Stockholder Representative all give prompt written notifications and other communications from any Taxing Authority relating notice to any Tax liability Seller of the Companies with receipt of any written notice by the Company, Buyers or any Buyer Affiliate which involves the assertion of any claim, or the commencement of any Action in respect of which an indemnity may be sought by Buyers pursuant to a this Article VI or in respect of any Pre-Closing Tax Period or any actions Straddle Period of the Company (a “Tax Claim”); provided that failure to comply with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period this provision shall not affect the rights of an Indemnified Party under Article 7 with respect Buyers’ right to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication indemnification hereunder except to the extent that the Indemnifying Seller or a Seller Related Party is materially and irrevocably prejudiced by such failure. Seller shall have the failure right to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from control the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control contest or resolution of any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation Claim with respect to any such Tax Matter under Article 7, including through recovery against taxable period ending on or before the Indemnification Escrow Account, which has not expired or lapsedClosing Date; provided, however, that Stockholder Representative Seller shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without obtain the prior written consent of Parent, Buyers (which consent shall not be unreasonably withheld, delayed conditioned or conditioned. If delayed) before entering into any settlement of a claim if the resolution or settlement of such claim would increase the Tax liability of any Buyer Parties object or the Company in a taxable period that ends after the Closing Date, or ceasing to any action defend such claim; and provided further, that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection Buyers shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate entitled to participate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative the defense of such noticeclaim and to employ counsel of its choice for such purpose, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor which separate counsel shall be borne equally solely by Buyers. Buyers shall have the right to control the contest or resolution of any Tax Claim with respect to any Straddle Period; provided, however, that Buyers shall obtain the prior written consent of Seller (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim if the resolution or settlement of such claim would increase the Tax liability of Seller or any Seller Related Party or result in an indemnification obligation owing by Seller or Seller Related Party to a Buyer Parties Indemnitee pursuant to this Article VI or ceasing to defend such claim; and, provided further, that Seller shall be entitled to participate in the defense of such claim and Stockholder Representativeto employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Seller.
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (Endo International PLC)
Contests. (a) Buyer Parties After the Closing Date, each of Sellers and the Companies Acquiror shall promptly forward notify the other party in writing upon receipt of written notice of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on a PMSI Indemnitee, the Acquiror or the Transferred Subsidiaries or the Belgian Subsidiaries which, if determined adversely to Stockholder Representative all written notifications the taxpayer or after the lapse of time, would be grounds for indemnification by the other party under Section 8.7. Such notice shall contain factual information (to the extent known to the notifying party) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other communications document received from any Taxing Authority relating in respect of any such asserted Tax liability. Failure by any indemnitee under Section 8.7 to give any indemnitor under Section 8.7 prompt notice of an asserted Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period as required by this Section 8.8 shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter indemnification obligation of such written notification or other communication indemnitor except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the such failure to provide such written noticegive notice results in a actual material detriment to the indemnitor.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from In the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any case of an audit or examination by any taxing authority administrative or any other judicial proceeding that relates to a period ending on or administrative proceeding before the Closing Date with respect to Taxesthe Transferred Assets, PMSI and contestSellers shall have the sole right, resolve and defend against any assessment for additional Taxesat their expense, notice to control the conduct of Tax deficiency such audit or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedproceeding; provided, however, that Stockholder Representative PMSI and Sellers shall provide consult with the Acquiror to Buyer Parties the extent any proposed adjustment may have a material effect on the Taxes of the Acquiror or the Transferred Subsidiaries for taxable periods beginning after the Closing Date. The Acquiror shall control the defense and settlement of any contest relating to taxable periods or portions thereof relating to the Transferred Assets that begin on or after the Closing Date, provided, however, the Acquiror shall consult with PMSI and the Sellers to the extent any proposed adjustment may have a material effect on the Taxes of PMSI or the Sellers for taxable periods beginning before the Closing Date.
(at Buyer Parties’ expense, which expense shall not be subject c) In the case of an audit or administrative or judicial proceeding that relates to indemnification under Article 7) reasonable participation rights a period ending on or before the Belgian Closing Date with respect to so much the Belgian Subsidiaries, the Sellers shall have the sole right, at their expense, to control the conduct of such Tax Matter audit or proceeding; provided, however, that is reasonably likely PMSI and the Sellers shall consult with the Acquiror to affect the Tax liability extent any proposed adjustment may have a material effect on the Taxes of Buyer Parties the Acquiror, the Belgian Subsidiaries or the Companies Transferred Subsidiaries for taxable periods beginning after the Belgian Closing Date. The Acquiror shall control the defense and settlement of any Post-contest relating to taxable periods or portions thereof with respect to the Belgian Subsidiaries that begin on or after the Belgian Closing Tax Period. Stockholder Representative Date, provided, however, the Acquiror shall not assert consult with PMSI and the Sellers to the extent any defenses proposed adjustment may have a material effect on the Taxes of PMSI and the Sellers for taxable periods with respect to the Belgian Subsidiaries beginning before the Belgian Closing Date.
(d) With respect to periods beginning before the Closing Date and ending after the Closing Date with respect to the Transferred Assets (and with respect to periods beginning before the Belgian Closing Date and ending after the Belgian Closing Date with respect to the Belgian Subsidiaries), (i) each party may participate in an audit or claims, enter into any settlement of, or otherwise compromise, proceeding which relates to any such Tax Matter period and (ii) such audit or proceeding shall be controlled by that reasonably could adversely affect party which would bear the liability burden of Buyer Parties the greater portion of the sum of the adjustment; provided that neither party shall settle any such audit or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, proceeding without the prior written consent of Parentthe other, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to The principle set forth in the preceding sentencesentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, Buyer Parties shall, within thirty (30choice of judicial forum) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate situations in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative which separate issues are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved otherwise controlled hereunder by the Dispute Advisor Acquiror, PMSI and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeSellers.
Appears in 1 contract
Sources: Purchase Agreement (Pharmaceutical Marketing Services Inc)
Contests. (ai) Buyer Parties and After the Companies Closing, each party shall promptly forward to Stockholder Representative all written notifications and notify the other communications from party of any Taxing Authority relating to any Tax liability demand, claim or notice of the Companies commencement of a Tax Proceeding received with respect to Taxes for which OpCo or Buyer is liable pursuant to this Agreement; provided, however, that a Pre-Closing Tax Period or any actions with respect party’s failure to the same. The failure of Buyer Parties or the Companies to deliver give such written notice in such period shall will not affect the other party’s rights of an Indemnified Party to indemnification under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication this Section 6.1 except to the extent that the Indemnifying Party other party is materially prejudiced thereby. Such notice shall contain factual information (to the extent known) describing the asserted Tax liability and irrevocably prejudiced by shall include copies of the failure to provide relevant portion of any notice or other document received from any Tax Authority or any other Person in respect of any such written noticeasserted Tax liability.
(bii) (i) Stockholder Representative (at Stockholders’ At OpCo’s request and expense, which Buyer shall contest (or cause to be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductiblecontested) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any asserted Pre-Closing Tax Period (but Tax liability for this purpose excluding any Straddle Period) but only to the extent the Stockholders which OpCo may have an indemnity obligation under Section 6.1(a)(i). If OpCo so elects, OpCo shall control the conduct, through counsel of its own choosing and at its own expense, of any Tax Proceeding involving any asserted Pre-Closing Tax Period Tax liability with respect to any the Company and/or its Subsidiaries relating to Pre-Closing Tax Period Taxes for which OpCo is liable pursuant to Section 6.1(a)(i); provided that Buyer and its Affiliates shall have the right to participate in such Tax Matter under Article 7Proceeding, including through recovery against the Indemnification Escrow Accountcounsel of their choosing, which has not expired or lapsed; provided, however, that Stockholder Representative at their own expense. OpCo shall provide keep Buyer fully informed on a timely basis of all matters relating to Buyer Parties (at Buyer Parties’ expense, which expense any Tax Proceeding controlled by OpCo hereunder. OpCo shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties accept any proposed adjustment or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, agreement in compromise regarding any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Proceeding controlled by OpCo without the prior written consent of ParentBuyer, which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed.
(iii) In the case of a Tax Proceeding that relates to a Straddle Period, Buyer shall control the conduct of such Tax Proceeding, but OpCo shall have the right to participate in such Tax Proceeding at its own expense; provided that Buyer shall not accept any proposed adjustment or enter into any settlement or agreement in compromise regarding any such Tax Proceeding without OpCo’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). If Buyer Parties object shall keep OpCo fully informed on a timely basis of all matters relating to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Tax Proceeding controlled by Buyer Parties shall, within thirty hereunder.
(30iv) days after delivery from Stockholder Representative Payment by OpCo of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection amount due under Section 6.1(a)(i) shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement made within ten (10) days after receipt following written notice by Stockholder Representative Buyer that payment of such notice, amounts to the disputed items appropriate Tax Authority or other applicable third party is due; provided that OpCo shall not be required to make any payment earlier than ten (10) days before it is due to the appropriate Tax Authority or applicable third party. Payment by Buyer of any amount due under Section 6.1(a)(ii) shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items made within ten (10) days following written notice by OpCo that payment of having such amounts to the item referred appropriate Tax Authority or other applicable third party is due; provided that Buyer shall not be required to make any payment earlier than ten (10) days before it pursuant is due to the appropriate Tax Authority or applicable third party. In the case of a Tax that is contested in accordance with the provisions of this Section 6.1(d), payment of such contested Tax will not be considered due earlier than the date a “final determination” to such procedures effect is made by such Tax Authority. For this purpose, a “final determination” shall mean a settlement, compromise, or other agreement with the relevant Tax Authority, a deficiency notice with respect to which the period for filing a petition with the Tax court or the relevant state, local or foreign tribunal has expired or a decision of any court of competent jurisdiction that is not subject to appeal or as it may require. The costs, fees and expenses of to which the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativetime for appeal has expired.
Appears in 1 contract
Sources: Equity Purchase Agreement (Health Care Reit Inc /De/)
Contests. (a) Buyer Parties and the Companies Purchaser shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability inform Seller of the Companies with respect to a Pre-Closing Tax Period commencement of any audit, examination or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
proceeding (b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax MatterContest”) relating in whole or in part to Taxes for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that Seller is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items responsible hereunder within ten (10) days of having the item referred its receipt of any notice of deficiency, proposed adjustment, assessment, audit, examination or other administrative or court proceeding, suit, dispute, or other claim in which a Taxing Authority makes or proposes to it make a Tax adjustment that could result in an indemnity payment pursuant to Article VII or Section 9.03 hereof. Seller, at its option and at its own expense, shall control all proceedings and other Actions taken in connection with such procedures as it may requireTax Contest except for (i) any Tax Contest involving a Tax period beginning before and ending after the Closing Date, or (ii) any Tax Contest that could reasonably be expected to affect the Tax liability of Purchaser or any of the Companies by greater than for any Post Closing Period, in which case Seller and Purchaser shall jointly control all proceedings with respect to any such Tax Contest at their own cost and expense. Notwithstanding the foregoing, if notice is given to Seller of the commencement of any Tax Contest and Seller does not, within fifteen (15) Business Days after Purchaser’s notice is received, give notice to Purchaser of its election to assume the defense thereof, Purchaser shall control such Tax Contest and Seller shall be bound by any determination made in such Tax Contest or any compromise or settlement thereof effected by Purchaser. The costsfailure of Purchaser to give reasonably prompt notice of any Tax Contest shall not release, fees waive or otherwise affect Seller’s obligations with respect thereto except to the extent that Seller can demonstrate actual and expenses material loss and prejudice as a result of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativesuch failure.
Appears in 1 contract
Sources: Stock Purchase Agreement
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder After the Closing Date, Purchaser shall promptly notify Seller Representative (at Stockholders’ expensein writing of any written notice of a proposed adjustment or Claim in an audit or administrative or judicial proceeding involving Purchaser or any of the Company Parties which, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard if determined adversely to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxestaxpayer, and contest, resolve and defend against any assessment would be grounds for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for indemnification under this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedSection 10.3; provided, however, that Stockholder a failure or delay to give such notice will not affect Purchaser’s right to indemnification thereunder except to the extent, if any, that Sellers are materially prejudiced thereby.
(ii) In the case of an audit or administrative or judicial proceeding that relates solely to taxable periods ending on or before the Closing Date, provided, that, Seller Representative acknowledges in writing its obligation to indemnify Purchaser and the Company Parties (to the extent not covered by the R&W Insurance Policy or Indemnity Escrow Account) amount of any adjustment that may be made as a result of such audit or proceeding and, provided further, that such audit or proceeding does not seek criminal penalties against any of the Company Parties or material equitable or other non-monetary remedies against any of the Company Parties, Seller Representative shall provide have the right at Seller Representative’s expense to Buyer Parties (participate in and control the conduct of such audit or proceeding. Subject to the provisions and limitations set forth in the preceding sentence, Purchaser shall use its commercially reasonable efforts to allow Seller Representative, at Buyer Parties’ Seller Representative’s expense, which expense to control any portion of any other audit or proceeding that relates to taxable periods ending on or before the Closing Date. The Seller Representative shall not be subject keep Purchaser informed of the progress of any such audit or proceeding (including the prompt provision to indemnification under Article 7) reasonable participation rights with respect Purchaser of all material correspondence, pleadings, protests, briefs and other documents pertaining to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties audit or the Companies for proceeding), and Purchaser also may participate in any Post-Closing Tax Periodsuch audit or proceeding at its expense. Stockholder Seller Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, settle any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties audit or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, proceeding without the prior advance written consent of ParentPurchaser, which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed. If Buyer Parties object Seller Representative does not assume the defense of any such audit or proceeding, the provisions of Section 10.3(e)(iii) shall apply with respect thereto.
(iii) With respect to any action that Stockholder other audit or proceeding not controlled by Seller Representative, such audit or proceeding shall be controlled by Purchaser. If, however, Sellers could be subject to any liability under this Agreement in connection with any such audit or proceeding, Purchaser shall keep the Seller Representative proposes informed of the progress of any such audit or proceeding (including the prompt provision to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Seller Representative of written notice of the intent all material correspondence, pleadings, protests, briefs and other documents pertaining to take such actionaudit or proceeding), notify Stockholder Seller Representative may also participate in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice audit or proceeding at its expense and Purchaser shall not settle any such audit or proceeding without the advance written consent of objection Seller Representative, which consent shall not be duly deliveredunreasonably withheld, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten conditioned or delayed.
(10iv) days after receipt by Stockholder Representative For the avoidance of such noticedoubt, the disputed items provisions of this Section 10.3(e), and not those of Section 9.3, shall be resolved by apply in the Dispute Advisor and case of any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred adjustment, claim, controversy or administrative or judicial proceeding relating to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeTaxes.
Appears in 1 contract
Contests. (ai) Sellers and Buyer Parties agree, in each case at no cost to the other party, to cooperate with the other and the Companies other's representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall promptly forward include, but not be limited to, making available to Stockholder Representative the other party, during normal business hours, all written notifications books, records, returns, documents, files, other information (including, without limitation working papers and schedules), officers or employees (without substantial interruption of employment) or other communications from relevant information necessary or useful in connection with any Taxing Authority Contest requiring any such books, records and files. Sellers shall, at their election, have the right to represent a Target Company's interests in any Contest relating to any a Tax liability of the Companies with respect to matter arising in, or related to, a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that such Contest is in connection with any Taxes for which Sellers may be liable pursuant to Section 10.2 hereof, to employ counsel of their choice at their expense and to control the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide conduct of such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7Contest, including through recovery against the Indemnification Escrow Account, which has not expired Settlement or lapsedOther Disposition thereof; provided, however, that Stockholder Representative Buyer shall provide have the right to Buyer Parties (consult with Sellers regarding any such Contest that may affect a Target Company for any periods ending after the Closing Date, at Buyer Parties’ Buyer's own expense, and provided further, that any settlement or other disposition of any such Contest may only be made with the consent of Buyer, which expense shall consent will not be subject unreasonably withheld. In connection with any Contest which is controlled by Sellers pursuant to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claimsthis Section 9.5(b), enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunderno Seller shall, without the prior written consent of Parent, Buyer (which consent shall not be unreasonably withheld), delayed (A) make any election, change any annual accounting period, or conditioned. If Buyer Parties object adopt or change any accounting method if such election, adoption or change would have the effect of increasing the tax liability of Buyer, or its Affiliates or any of the Target Companies in any Tax Period ending after the Closing Date, or (B) file any amended return, enter into any closing agreement, surrender any right to claim a refund of taxes, consent to any extension or waiver of the limitation period applicable to any tax claim or assessment relating to the Target Companies or take any action, if such amendment, agreement, settlement, surrender, consent of other action would have the effect, directly or indirectly, of increasing the liability for Taxes of Buyer, its Affiliates, or any of the Target Companies for or with respect to any Tax Period ending after the Closing Date. Buyer shall not, without the prior written consent of Seller (which consent shall not be unreasonably withheld), (A) make any election, change any annual accounting period, or adopt or change any accounting method if such election, adoption or change would have the effect of increasing liability for Taxes in any Tax Period ending on or before the Closing Date, or (B) file any amended return, enter into any closing agreement, surrender any right to claim a refund of taxes, consent to any extension or waiver of the limitation period applicable to any tax claim or assessment relating to the Target Companies or take any action, if such amendment, agreement, settlement, surrender, consent of other action would have the effect, directly or indirectly, of increasing the liability for Taxes for or with respect to any Tax Period ending on or before the Closing Date. Notwithstanding anything herein to the contrary, Buyer shall the right to control any Contest with respect to Straddle Periods of the Target Companies.
(ii) Unless Sellers have previously received written notice from Buyer or the Target Companies of the existence of a Contest, Sellers shall give written notice to Buyer of the existence of any Contest relating to a Tax matter that Stockholder Representative proposes to take is Buyer's responsibility pursuant to the preceding sentence, Buyer Parties shall, this Agreement within thirty twenty (3020) days after delivery from Stockholder Representative the date of receipt by a Seller of any written notice of such Contest by a Taxing Authority; provided that failure to give such notice shall relieve Buyer of any liability with respect to such Contest unless Buyer was otherwise aware of such Contest or the intent failure to take give such actionnotice did not result in additional expenses or otherwise prejudice the Buyer. Unless the Buyer has previously received written notice from Sellers of the existence of a Contest, notify Stockholder Representative in writing that it so objects, specifying with particularity Buyer shall give written notice to Sellers of the objectionable action and stating existence of any Contest for which Sellers may have responsibility within twenty (20) days from the specific factual or legal basis for receipt by the Buyer of any such objection. If a written notice of objection such Contest by a Taxing Authority; provided that failure to give such notice shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts relieve Sellers of any liability with respect to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative Contest unless the Insider Stockholders were otherwise aware of such notice, Contest or the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred failure to it pursuant to give such procedures as it may require. The costs, fees and notice did not result in additional expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeor otherwise prejudice Sellers.
Appears in 1 contract
Sources: Stock Purchase Agreement (Valassis Communications Inc)
Contests. (a) After the Closing Date, Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from notify Seller in writing of any Taxing Authority relating to proposed assessment, the commencement of any audit or court proceedings or of any demand or claim on a Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect Indemnitee which, if determined adversely to the same. The taxpayer or after the lapse of time, would be grounds for indemnification by Seller under Section 10.3 (each such assessment, audit, court proceeding, demand or claim, a “Contest”); provided that the failure of Buyer Parties or the Companies so to deliver such written notice in such period notify Seller shall not affect the rights relieve Seller of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related liability that it may have to the subject matter of such written notification or other communication Tax Indemnitee hereunder, except to the extent that Seller demonstrates that it is actually prejudiced thereby. Such notice (a “Tax Claim”) shall contain factual information (to the Indemnifying Party is materially extent known to Buyer) describing the asserted Tax liability in reasonable detail and irrevocably prejudiced by the failure to provide shall include copies of any notice or other document received from any taxing authority in respect of any such written noticeasserted Tax liability.
(b) In the case of any Contest that relates to a taxable period ending on or prior to the Closing Date, Seller shall have the right, at its expense and through counsel of its own choosing, to control the conduct of such Contest; provided that (i) Stockholder Representative Seller does not dispute its obligation to indemnify the Tax Indemnitees for the asserted liability, (at Stockholders’ expenseii) Seller shall consult with the Buyer regarding any such Contest and shall allow Buyer to participate in any such proceeding and (iii) no settlement or other disposition of any claim for Tax which would adversely affect any Tax Indemnitee in any taxable period ending after the Closing Date in any manner or to any extent (including, which but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments and the reduction of loss or credit carryovers) shall be paid solely agreed to without Buyer’s prior written consent, such consent not to be unreasonably withheld or delayed, unless Buyer agrees to indemnify the Seller for any increase in Taxes resulting from a failure to provide consent. If Seller elects not to direct the Stockholder Representative Expense Amount first Contest, Buyer or the Company may pay, compromise, or contest such asserted liability.
(c) In the case of a Contest that relates to a taxable period beginning before the Closing Date and then from ending after the Indemnification Escrow Account without regard Closing Date, Buyer shall have the right, at its expense and through counsel of its own choosing, to control the Deductibleconduct of such Contest; provided that (i) Buyer shall control consult with Seller regarding any audit or examination by such Contest and shall allow Seller to participate in any taxing authority or any other judicial or administrative such proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency (ii) no settlement or other adjustment disposition of any claim for Taxes of which would adversely affect Seller in such taxable periods or subsequent taxable periods shall be agreed to without Seller’s prior written consent, such consent not to be unreasonably withheld or delayed, unless Seller agrees to indemnify the Companies (each, a “Tax Matter”) Buyer for any Pre-Closing Tax Period (but for this purpose excluding increase in Taxes resulting from a failure to provide consent. Except as provided above, the Buyer shall have the right to control the conduct of any Straddle Period) but only to the extent the Stockholders have an obligation Contest in its sole discretion with respect to any such other Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties matter.
(at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7d) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentenceSeller, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative and the Company agree to cooperate in the defense against or compromise of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeContest.
Appears in 1 contract
Contests. (a) Buyer Parties and In the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights case of an Indemnified Party under Article 7 with respect audit or administrative or judicial proceeding that relates to any Tax periods ending on or Damage directly before the Closing Date or indirectly related for which Buyer may seek indemnity from Seller, Seller shall have the right, at its expense, to participate in and control the subject matter conduct of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent that such audit or proceeding relates to a potential adjustment for which Seller has acknowledged liability to Buyer under this Agreement. Seller shall keep Buyer fully informed of the Stockholders have an obligation progress of any such audit or proceeding, and Buyer may also participate in any such audit or proceeding at its expense. Notwithstanding the foregoing, Seller may not pay, discharge, settle, compromise or otherwise dispose of any audit or proceeding with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Company Group without the prior written consent of Parent, Buyer (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed); provided that no Buyer consent shall be required to settle or otherwise dispose of the Sales and Use Tax Audits in the event that Buyer and the Company Group are not financially liable and no wrongdoing on behalf of Buyer or the Company Group is admitted in connection with such settlement or disposition. If Buyer Parties object to Seller does not assume the defense of any action that Stockholder Representative proposes to take pursuant to the preceding sentencesuch audit or proceeding promptly, Buyer Parties shall, within thirty may defend and settle the same (30for Seller’s account and at Seller’s expense) days after delivery from Stockholder Representative of written notice of the intent to take in such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures manner as it may requiredeem appropriate. The costsIn the event that a potential adjustment as to which Seller would be liable is present in the same proceeding as another potential adjustment for which Buyer would be liable, fees Buyer shall have the right, at its expense, to control such audit or proceeding. With respect to a potential adjustment for which both Seller, on the one hand, and expenses Buyer or the Company Group, on the other hand, could be liable, or which involves an issue that recurs or affects related tax items for any period ending after the Closing Date (whether or not the subject of audit as such time), (i) both Buyer and Seller may participate in the Dispute Advisor audit or proceeding, each at its own expense, and (ii) the audit or proceeding shall be borne equally controlled by Buyer. Notwithstanding the foregoing, Buyer Parties may not pay, discharge, settle, compromise or otherwise dispose of any audit or proceeding with respect to a potential adjustment for which Seller could be liable without the prior written consent of Seller (which consent shall not be unreasonable withheld or delayed); provided that no Seller consent shall be required in the event that Seller is not financially liable and Stockholder Representativeno wrongdoing on behalf of Seller is admitted. In the event of a conflict between a provision in this Section 8.04(f) and a provision in Section 9.07, the provision in this Section 8.04(f) shall control.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Rentech Nitrogen Partners, L.P.)
Contests. (a) Buyer Parties After the Closing, the Parent shall promptly notify the Shareholders in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Parent or of any of the Company, the Subsidiary and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect LLC Subsidiary which, if determined adversely to the same. The taxpayer, would be grounds for indemnification under this Article VII; provided, however, that a failure of Buyer Parties or the Companies to deliver give such written notice in such period shall will not affect the Parent's rights of an Indemnified Party to indemnification under this Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication VII except to the extent that the Indemnifying Party is Shareholders demonstrate that they were materially and irrevocably prejudiced by the failure to provide such written noticethereby.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from In the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any case of an audit or examination by any taxing authority administrative or any other judicial proceeding that relates to periods ending on or administrative proceeding with respect before the Effective Time (or if later, the Closing Date), provided that the Shareholders acknowledge in writing its liability under this Agreement to Taxeshold the Parent, the Company, and contestthe Subsidiary harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to periods ending on or before the Closing Date, resolve the Shareholders shall have the right at their expense to participate in and defend against any assessment for additional Taxes, notice control the conduct of Tax deficiency such audit or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which the Stockholders Shareholders have an obligation acknowledged its liability. As security for the indemnification provided hereunder, the Shareholders shall place 10% of the shares of the Parent's Common Stock received by them at the Closing in escrow pursuant to the Escrow Agreement. The Parent shall also have the right at its expense to participate in such audit or proceeding, but the Parent shall have no right to control all or any portion of such audit or proceeding permitted to be controlled by the Shareholders under the immediately preceding sentence. If the Shareholders assume the defense of any such audit or proceeding, and the Shareholders and the relevant taxing authority are thereafter willing to settle such audit or proceeding for the payment by the Shareholders of a fixed amount of Tax but the Parent rejects such settlement, then the Shareholders' liability under this sentence for Taxes with respect to any such Tax Matter under Article 7, including through recovery against audit or proceeding shall be limited to the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense aggregate amount of the proposed settlement and the Shareholders shall not be subject to indemnification under Article 7) reasonable participation rights liable for any expenses incurred by the Parent with respect to so much such audit or
(c) With respect to issues relating to a potential adjustment for which the Shareholders, on the one hand (as evidenced by its acknowledgment under this Section 7.06), and the Parent or the Company, the Subsidiary or the LLC Subsidiary, on the other hand, could be liable, or which recur for any period ending after the Effective Time (or if later, the Closing Date) (whether or not the subject of audit at such Tax Matter time), (i) each party (either the Shareholders, on the one hand, or the Parent, the Company, or the Subsidiary, on the other hand) may participate at its own expense in the audit or proceeding, and (ii) the audit or proceeding with respect to such issues shall be controlled by that is reasonably likely to affect party which would bear the burden of the greater portion of the present value of the Tax liability attributable to the adjustments and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of Buyer Parties or deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VII by the Companies for any Post-Closing Tax Period. Stockholder Representative Parent, on the one hand, and the Shareholders, on the other hand.
(d) Except as provided in Section 7.06(b) above, neither the Parent nor the Shareholders shall not assert any defenses or claims, enter into any settlement of, compromise or otherwise compromise, agree to settle any such claim pursuant to any Tax Matter that reasonably could audit or proceeding which would adversely affect the liability of Buyer Parties other parties for such year or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, a subsequent year without the prior written consent of Parentthe other parties, which consent shall may not be unreasonably withheld. The Parent and the Shareholders agree to cooperate, delayed or conditioned. If Buyer Parties object and the Parent agrees to any action that Stockholder Representative proposes to take pursuant to cause the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such noticeCompany, the disputed items shall be resolved by Subsidiary and the Dispute Advisor and LLC Subsidiary to cooperate, in the defense against or compromise of any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve claim in any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeaudit or proceeding.
Appears in 1 contract
Sources: Merger Agreement (Shaw Group Inc)
Contests. (ai) Seller on the one hand, and Buyer Parties and on the Companies other, shall promptly forward to Stockholder Representative all written notifications and notify the other communications from any Taxing Authority relating to any Tax liability in writing within 30 days or such shorter period as may be required thereby of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure receipt of Buyer Parties or the Companies to deliver such written notice of any pending or threatened Tax examination, audit or other administrative or judicial proceeding (a “Tax Contest”) that could reasonably be expected to result in such period shall not affect a liability for Taxes of another party. If the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter recipient of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure notice of a Tax Contest fails to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expensenotice to such other party, which and the recipient is entitled to indemnification for Taxes under this Agreement, it shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard entitled to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) indemnification for any Pre-Closing Taxes arising in connection with such Tax Period (but for this purpose excluding any Straddle Period) Contest, but only to the extent extent, if any, that such failure or delay shall not have adversely affected the Stockholders have an obligation with respect indemnifying party’s ability to defend against, settle, or satisfy any action, suit or proceeding against it, or any damage, loss, claim, or demand for which the indemnified party is entitled to indemnification hereunder.
(ii) If a Tax Contest relates to any Taxes for which Seller is liable in full hereunder, Seller shall at its expense control the defense and settlement of such Tax Matter under Article 7Contest. If such Tax Contest relates to any Taxes for which Buyer is liable in full hereunder, Buyer shall at its own expense, control the defense and settlement of such Tax Contest. A party not in control of the defense shall have the right to observe the conduct of any Tax Contest at its expense, including through recovery against the Indemnification Escrow Account, its own counsel and other professional experts. If a Tax Contest relates to Taxes for which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Seller and Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not may be liable hereunder, the parties that may have such liability shall jointly control the defense and settlement of such Tax Contest.
(iii) To the extent that an issue raised in any Tax Contest controlled by one party or jointly controlled could materially affect the liability for Taxes of another party, the controlling party shall not, and no party in the case of joint control shall, enter into a final settlement without the prior written consent of Parentthe other party or parties, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object Where a party withholds its consent to any action final settlement, that Stockholder Representative proposes to take pursuant to party may continue or initiate further proceedings, at its own expense, and the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice liability of the intent party or parties that wished to take settle (as between the consenting and the non consenting parties) shall not exceed the liability that would have resulted from the proposed final settlement including interest, additions to Tax, and penalties that have accrued at that time, and the non consenting party or parties shall indemnify the consenting party or parties for such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeTaxes.
Appears in 1 contract
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and If an audit is commenced, an adjustment is proposed or any other communications from claim is made by any Taxing Authority relating with respect to any a Tax liability of the Companies with respect Company relating to a Pre-tax period or portion thereof ending on or prior to the Closing Tax Period Date for which Verizon or Seller reasonably could be liable under Section 4.3.4(b), Buyer shall promptly notify Seller of such audit or such proposed adjustment or such claim (unless Verizon or Seller previously was notified in writing by the relevant Taxing Authority). If Seller so requests and at Seller's expense, Buyer shall cause the relevant entity (Buyer, the Company or any actions with respect successor) to the same. The failure contest such claim on audit or by appropriate claim for refund or credit of Buyer Parties Taxes or the Companies to deliver such written notice in such period a related administrative or judicial proceeding, and shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially permit Seller, at its option and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from to control the Stockholder Representative Expense Amount first prosecution and then from the Indemnification Escrow Account without regard to the Deductible) shall control settlement of any such audit or examination by any taxing authority refund claim or any other related administrative or judicial or administrative proceeding with respect to Taxesthose specific matters which could reasonably affect Verizon's Tax liability or the Tax liability of Seller, including any liability hereunder, or their right to payment; and, where deemed necessary by Seller and contestin accordance with the foregoing, resolve and defend against any assessment for additional Taxes, notice Buyer shall cause the relevant entity to authorize by appropriate powers of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only attorney such persons as Seller shall designate to the extent the Stockholders have an obligation represent such entity with respect to such audit or refund claim or related administrative or judicial proceeding and to settle or otherwise resolve any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedproceeding as it specifically relates to such matters; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much if the results of such Tax Matter that is audit or proceeding could reasonably likely be expected to affect have a material adverse effect on the Tax liability assets, business, operations, or financial condition of Buyer Parties for taxable periods ending after the Closing Date, then there shall be no settlement or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses closing or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, other agreement with respect thereto without the prior written consent of ParentBuyer. Buyer shall further execute and deliver, which consent or cause to be executed and delivered, to Seller or its designee all instruments and documents reasonably requested by Seller to implement the provisions of this subsection (e). Any refund of Taxes obtained by Buyer or the affected entity shall not be unreasonably withheld, delayed or conditionedpaid promptly to Seller in accordance with Section 4.3.4(d) hereof. If Buyer Parties object shall have the sole right to any action that Stockholder Representative proposes to take pursuant to represent the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice interests of the intent to take such action, notify Stockholder Representative Company in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual all other Tax audits or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeadministrative or court proceedings.
Appears in 1 contract
Contests. Buyer agrees to give written notice to Seller Representative of the receipt of any written notice by the Company, Buyer or any of Buyer's Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity may be sought by Buyer pursuant to this ARTICLE VI (a) a "Tax Claim"); provided, that failure to comply with this provision shall not affect Buyer's right to indemnification hereunder except to the extent that Sellers are actually prejudiced thereby. Buyer Parties and shall control the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to contest or resolution of any Tax liability Claim that Seller Representative does not control under this Section 6.04; provided, however, that (i) Seller Representative, on behalf of Sellers, shall be permitted to participate in any such Tax Claim to the Companies with respect extent related to a Pre-Closing Tax Period or any actions with respect to of the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except Company and to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (Sellers would have an indemnification obligation hereunder at Stockholders’ its expense, which shall be paid solely from (ii) Buyer agrees to consult with and to keep Seller Representative reasonably informed of all material events, on at least a calendar monthly basis, regarding the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much status of such Tax Matter that is reasonably likely to affect the Tax liability of Claim, and (iii) Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without obtain the prior written consent of Parent, Seller Representative (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed) before entering into any settlement of a claim or ceasing to defend such claim. If Buyer Parties object Seller Representative shall be entitled but not obligated to control the contest or resolution of any action Tax Claim that Stockholder Representative proposes relates entirely to take Taxes for which an indemnification may be sought pursuant to the preceding sentencethis ARTICLE VI; provided, however, that (i) Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent shall be permitted to take such action, notify Stockholder Representative participate in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If Tax Claim at its expense, (ii) Seller Representative agrees to consult with and to keep Seller Representative reasonably informed of all material events, on at least a notice calendar monthly basis, regarding the status of objection shall be duly deliveredsuch Tax Claim, Buyer Parties and Stockholder (iii) Seller Representative shall negotiate in good faith and use their commercially reasonable efforts obtain the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim or ceasing to resolve defend such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeclaim.
Appears in 1 contract
Sources: Stock Purchase Agreement (Eyegate Pharmaceuticals Inc)
Contests. (a1) Buyer Parties and the Companies If a written claim is made against Lessor or if any proceeding is commenced against Lessor (including a written notice of such proceeding) for Taxes as to which Lessee could be liable for payment or indemnity hereunder, such Lessor shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written give Lessee notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter writing of such written notification or other communication except to the extent claim (PROVIDED, HOWEVER, that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
notice shall not affect Lessee's obligations hereunder to the Lessor unless such failure shall effectively preclude Lessee's right to contest such claim) and shall not take any action with respect to such claim or Tax without the consent of Lessee for thirty (b30) (i) Stockholder Representative (at Stockholders’ expensedays following the receipt of such notice by Lessee; PROVIDED, which HOWEVER, that, if Lessor shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard required by Law to take action prior to the Deductibleend of such 30-day period, Lessor shall, in such notice to Lessee, so inform Lessee, and Lessor shall take no action without the consent of Lessee for as long as it is legally able to do so (it being understood that Lessor shall be entitled to pay the Tax claimed and sue for a refund prior to the end of such 30-day period if (i)(A) t▇▇ failure to so pay the Tax would result in penalties (unless immediately reimbursed by Lessee) or (B) the failure to so pay would result in criminal penalties and (ii) Lessor uses its good faith efforts to take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, Lessor shall control (PROVIDED that Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim in writing in a manner reasonable satisfactory to Lessor) furnish Lessee with copies of any audit or examination by requests for information from any taxing authority or any other judicial or administrative proceeding relating to such Taxes with respect to Taxeswhich Lessee may be required to indemnify hereunder. If requested by Lessee in writing within thirty (30) days or such shorter period as may be required by Law after its receipt of such notice, Lessor shall, at the expense of Lessee (including all reasonable out-of-pocket costs, and reasonable in-house or outside attorney and accountants fees), in good faith contest (or, if permitted by applicable law, allow Lessee to contest), resolve through appropriate administrative and defend against judicial proceedings the validity, applicability or amount of such Taxes by resisting payment thereof, not paying the same except under protest if protest is necessary and proper or if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Lessee in writing, Lessor shall appeal any assessment for additional Taxesadverse administrative or judicial decision, notice of Tax deficiency or other adjustment of Taxes of except that Lessor shall not be required to (nor shall Lessee have the Companies (each, a “Tax Matter”right to) for pursue any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only appeals to the United States Supreme Court. If and to the extent Lessor by exercise of reasonable good faith efforts is able to separate the Stockholders contested issue or issues (which cannot include income tax issues) from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Documents without, in the good faith judgment of Lessor, materially adversely affecting it, Lessor shall permit Lessee to control the conduct of any such proceeding and shall provide to Lessee such information or data that is in such Lessor's control or possession that is reasonably necessary to conduct such contest and Lessee shall consult with the Lessor and keep it reasonably informed of the progress of such contest. In the case of a contest controlled by Lessor, Lessor shall conduct and control such contest, PROVIDED Lessor consults with Lessee in good faith regarding the manner of contesting such claim and shall keep Lessee reasonably informed regarding the progress of such contest but Lessor shall have ultimate control over all aspects of such contest. Lessor shall not fail to take any action expressly required by this SECTION 3(i)(D) (including, without limitation, any action regarding an obligation appeal of an adverse determination with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired claim) or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties settle or the Companies for compromise any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, claim without the prior written consent of ParentLessee except as contemplated by SECTION 3(i)(D) herein.
(2) Notwithstanding the foregoing, in no event shall Lessor be required to take any action (or to permit Lessee to take any action) unless and until (A) Lessee shall have agreed to pay Lessor on demand on an After-tax Basis all reasonable costs and expenses that Lessor shall incur in connection with contesting such claim, (including without limitation, all costs, expenses, losses, reasonable legal and accounting fees, disbursements, penalties, fines, additions to Tax or interest thereon), (B) if such contest shall involve the payment of the claim, Lessee shall advance the amount thereof plus (to the extent indemnified hereunder) interest, penalties and additions to tax with respect thereto that are required to be paid prior to the commencement of such contest on an interest-free basis and with no additional net after-tax cost to Lessor (and Lessor shall promptly pay to Lessee any net realized tax benefits resulting from any imputed interest deduction arising from such interest free advance from Lessee plus any net tax benefits resulting from making any such payment), (C) Lessor shall have reasonably determined that the action to be taken will not result in any material risk of forfeiture, foreclosure, sale or loss of the Aircraft or the creation of any Lien (other than a Permitted Lien) (unless Lessee shall have adequately bonded such Lien or otherwise made provisions to protect the interests of Lessor in a manner reasonably satisfactory to Lessor in its sole discretion), (D) no Event of Default shall have occurred and be continuing at the time the contest is begun unless Lessee has provided security for its obligations hereunder by advancing to Lessor before proceeding with such contest, the amount of the Tax being contested, plus any interest and penalties and an amount estimated in good faith by Lessor for reasonable expenses, (E) in the case of a contest that is being pursued by Lessor, the aggregate amount of the claim together with the amount of all related claims that have been or could be raised with any or all of the other Aircraft leased by Lessor to Lessee or raised in any other audit for which consent Lessee would have an indemnity obligation under this SECTION 3(i)(D) is at least $50,000, and (F) if requested prior to or during the contest by Lessor, independent tax counsel selected by Lessee and reasonably acceptable to Lessor, renders to Lessor a written opinion that there is a reasonable basis (under the standard set forth in ABA Formal Opinion 85-352 or any successor thereto) for contesting such claim. In the case of any contest controlled by the Lessee hereunder, Lessor (including its counsel (at Lessor's expense)) shall have the right to participate in all proceedings and Lessee shall consult with Lessor in good faith regarding the manner of contesting such claim and shall keep Lessor reasonably informed regarding the progress of such contest and, if requested by Lessor, provide an opinion of tax counsel selected by Lessee and reasonably acceptable to Lessor to the effect that there is a Reasonable Basis for contesting such claims. Notwithstanding the foregoing, Lessee shall not be unreasonably withheldpermitted to control or conduct any contest if such contest involves Taxes based on or measured by the gross or net income of Lessor and PROVIDED, delayed that if Lessor determines in good faith that it is reasonably likely that such contest may have a material adverse impact on it, Lessor may retain or conditioned. If Buyer Parties object reassert control of any contest Lessee would otherwise be permitted to contest, and if Lessor shall release, waive, compromise or settle any action claim which may be indemnifiable by Lessee pursuant to this SECTION 3(i) without the written permission of Lessee, Lessee's obligation to indemnify Lessor with respect to such claim (and any claim the contest of which is materially prejudiced as a result of the release, waiver, compromise or settlement) shall terminate, subject to this SECTION 3(i)(D), and subject to SECTION 3(i)(C), Lessor shall repay to Lessee any amount previously paid or advanced to Lessor with respect to such claim (but not amounts paid or advanced for costs and expenses of any contests to the extent such amounts have already been expended) plus interest at the rate that Stockholder Representative proposes would have been payable by the relevant taxing authority with respect to take a refund of such Tax.
(3) Notwithstanding anything contained in this SECTION 3(i) to the contrary, Lessor shall not be required to contest any claim if the subject matter thereof shall be of a continuing nature and shall previously have been decided adversely by a court of competent jurisdiction pursuant to the preceding sentencecontest provisions of this SECTION 3(i)(D), Buyer Parties shallunless there shall have been a change in Law (or interpretation thereof) or a change in facts after the date with respect to which such previous contest shall have been decided, within thirty and Lessor shall have received, at Lessee's expense, an opinion of independent tax counsel selected by Lessee and reasonably acceptable to Lessor to the effect that as a result of such change in Law (30or interpretation thereof) days after delivery from Stockholder Representative or change in facts, it is more likely than not that Lessor will prevail in such contest.
(4) Nothing contained in this SECTION 3(i) shall require Lessor to contest or permit Lessee to contest a claim which it would otherwise be required to contest pursuant to this SECTION 3(i) if Lessor shall waive payment by Lessee of written notice any amount that might otherwise be payable by Lessee under this SECTION 3(i) by way of indemnity in respect of such claim (and any other claim for Taxes with respect to any other taxable year the intent contest of which is effectively precluded by Lessor's declination to take such action, notify Stockholder Representative in writing that it so objects, specifying action with particularity respect to the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeclaim).
Appears in 1 contract
Contests. (a) Buyer Parties and After the Companies Closing Date, the Purchaser shall promptly forward notify the Sellers in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, the Company or the Subsidiary which may affect the Tax Liability of the Sellers or any affiliate of the Sellers (including the Company). Such notice shall contain factual information (to Stockholder Representative all written notifications the extent known to the Purchaser, the Company or the Subsidiary) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other communications document received from any Taxing Authority relating taxing authority in respect of any such asserted Tax liability. The Purchaser's failure to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect give notice to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period Sellers as provided hereunder shall not affect the rights of an Indemnified Party Sellers' liabilities under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication this section except to the extent that the Indemnifying Party is materially and irrevocably Sellers are prejudiced by the failure to provide such written noticethereby.
(b) (i) Stockholder Representative (The Sellers may elect to direct, through counsel of their own choosing and at Stockholders’ its own expense, which shall be paid solely from the Stockholder Representative Expense Amount first any audit, claim for refund and then from the Indemnification Escrow Account without regard administrative or judicial proceeding to the Deductible) shall control extent involving any audit or examination by any taxing authority or any other judicial or administrative proceeding asserted liability arising with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such audit, claim for refund or proceeding relating to an asserted Tax Matter under Article 7liability is referred to herein as a "Contest"). If the Sellers elect to direct a Contest, including through recovery against they shall, within 30 calendar days of receipt of the Indemnification Escrow Accountnotice of asserted Tax liability pursuant to paragraph (a) of this Section 9.05, which has notify the Purchaser of their intent to do so, and the Purchaser shall cooperate and shall cause the Company and the Subsidiary to cooperate, at the expense of the Sellers, in each phase of such Contest. In any event, prior to Closing, the Purchaser and the Sellers shall take all steps to empower and cause the Company and the Subsidiary to promptly empower (by power of attorney and such other documentation as may be necessary and appropriate) such representatives of the Sellers as the Sellers may designate to represent the Company and the Subsidiary for any -47- 48 audit, claim for refund and administrative or judicial proceeding for the years 1997, 1998, 1999 and 2000. If the Sellers elect not expired to direct the Contest or lapsedfail to notify the Purchaser of their election as herein provided, the Purchaser, the Company and/or the Subsidiary may pay, compromise or Contest, at the Seller's expense, such asserted Tax liability. However, in each such case, none of the Purchaser, the Company, or the Subsidiary may settle or compromise any asserted Tax liability without the express written consent of the Sellers; provided, however, that Stockholder Representative shall provide such consent to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties settlement or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent compromise shall not be unreasonably withheld; and provided, delayed further, that any settlement or conditionedcompromise in violation of the preceding sentence shall release the Sellers of their obligation pay such Taxes pursuant to Section 9.01 hereof. In any event, the Sellers may participate, at their own expense, in the Contest. If Buyer Parties object the Sellers choose to any action that Stockholder Representative proposes direct the Contest, the Purchaser shall promptly empower and shall cause the Company and the Subsidiary to take pursuant to the preceding sentence, Buyer Parties shall, within thirty promptly empower (30by power of attorney and such other documentation as may be necessary and appropriate) days after delivery from Stockholder Representative of written notice such representatives of the intent Sellers as it may designate to take such action, notify Stockholder Representative represent the Purchaser or the Company and the Subsidiary in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objectionContest. If any Contest that is directed by the Sellers includes an issue the resolution of which would have a notice of objection Material Adverse Effect on the Company or the Subsidiary in a period or portion thereof ending after the Closing Date the Sellers shall be duly delivered, Buyer Parties consult with the Purchaser and Stockholder Representative shall negotiate consider in good faith and use their commercially reasonable efforts all comments made with respect thereto.
(c) Purchaser shall have the sole right to resolve control any Contest arising with respect to a period (or portion of a period) beginning after the Closing Date, provided however, that if a potential adjustment resulting from such items. If Buyer Parties and Stockholder Representative are unable Contest would give rise to reach such agreement within ten (10) days after receipt by Stockholder Representative a tax liability to the Sellers or any affiliate of such noticethe Sellers with respect to the Pre-Closing Period, the disputed items Sellers shall be resolved by have the Dispute Advisor and right to participate in such Contest. Additionally, in each such case, neither the Purchaser nor the Company may settle or compromise any determination by asserted Tax liability without the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses express written consent of the Dispute Advisor Sellers; provided, however, that such consent to settlement or compromise shall not be borne equally by Buyer Parties and Stockholder Representativeunreasonably withheld.
Appears in 1 contract
Sources: Purchase Agreement (Dial Corp /New/)
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder The ▇▇▇▇▇ Representative (at Stockholders’ expense, which and its duly appointed representatives shall be paid solely from have the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard authority to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxesauthority, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) or relating to any liability of ▇▇▇▇▇ and its subsidiaries for any all ▇▇▇▇▇ Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7Periods; PROVIDED, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, howeverHOWEVER, that Stockholder neither the ▇▇▇▇▇ Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much nor any duly appointed representative of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder ▇▇▇▇▇ Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereundershall, without the prior written consent of UbiquiTel Parent, which consent shall not be unreasonably withheld, delayed enter into any settlement of any contest or conditionedotherwise compromise any issue that would have a material adverse effect on the Tax benefits of UbiquiTel Parent or ▇▇▇▇▇ or any subsidiary for taxable years ending after the Closing Date. If Buyer Parties object UbiquiTel Parent and its duly appointed Representatives shall have the exclusive authority to control any audit or examination by any taxing authority, initiate any claim for refund, amend any Tax Return and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any action liability of ▇▇▇▇▇ and its subsidiaries for Taxes for any taxable year or other taxable period ending after the Closing Date (the "POST-CLOSING PERIODS"); PROVIDED, HOWEVER, that Stockholder Representative proposes to take pursuant to the preceding sentence(a) none of UbiquiTel Parent, Buyer Parties ▇▇▇▇▇, its subsidiaries nor any of their duly appointed representatives shall, within thirty (30) days after delivery from Stockholder Representative of without the prior written notice consent of the intent to take such action▇▇▇▇▇ Representative, notify Stockholder Representative in writing enter into any settlement of any contest or otherwise compromise any issue that it so objects, specifying with particularity adversely affects the objectionable action and stating liability of the specific factual or legal basis ▇▇▇▇▇ Stockholders for any such objection. If a notice ▇▇▇▇▇ Pre-Closing Period Taxes, and (b) none of objection shall be UbiquiTel Parent, ▇▇▇▇▇, its subsidiaries nor any of their duly deliveredappointed representatives shall, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative without the prior consent of such noticethe ▇▇▇▇▇ Representative, the disputed items shall be resolved enter into any settlement of any contest or otherwise compromise any issue that would require payment by the Dispute Advisor Controlling ▇▇▇▇▇ Stockholders (as defined herein) of any amount under this Agreement unless UbiquiTel Parent shall have waived or caused to be waived for itself and ▇▇▇▇▇ and its subsidiaries any determination by right to indemnification for Taxes from the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeControlling ▇▇▇▇▇ Stockholders.
Appears in 1 contract
Contests. (a) Buyer Parties After the Closing, the Purchaser shall promptly notify the Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or of any of the Partnership and the Companies shall promptly forward Subsidiaries which, if determined adversely to Stockholder Representative all written notifications and other communications from the taxpayer, would be grounds for indemnification under this Article VI or could otherwise result in any Taxing Authority relating Tax cost to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedSellers; provided, however, that Stockholder Representative shall provide a failure to Buyer Parties (at Buyer Parties’ expense, which expense shall give such notice will not be subject affect the Purchaser's right to indemnification under this Article 7VI except to the extent such failure on the part of the Purchaser or any Affiliate of the Purchaser prejudices the Sellers by preventing the avoidance of all or a portion of the Tax liability in question.
(b) reasonable participation rights In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that the Sellers acknowledge in writing their indemnification obligation liability under Article VI of this Agreement with respect to so much the potential liability of the Purchaser, the Partnership or any Subsidiary as a result of such Tax Matter that is reasonably likely to affect audit or administrative or judicial proceeding, the Tax liability of Buyer Parties Sellers (or the Companies Parent Entities, as the case may be) shall have the right, at their expense, to participate in and control the conduct of such audit or proceeding; the Purchaser may also participate in any such audit or proceeding but only if such audit or proceeding relates to non-income Taxes and, if the Sellers do not assume the defense of any such audit or proceeding, the Purchaser, at its expense, may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for any Post-Closing Tax Period. Stockholder Representative which the Sellers have acknowledged their indemnification obligation are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall not assert any defenses have the right, at its expense, to control the audit or claimsproceeding with respect 44 to the latter issues, provided that the Purchaser provides the Sellers with a written acknowledgement of the Purchaser's liability.
(c) Notwithstanding Section 6.04(b), neither the Purchaser nor the Sellers shall enter into any settlement ofcompromise or agree to settle any claim pursuant to any Tax audit or proceeding, including without limitation a Federal, state or otherwise compromiselocal income Tax audit or proceeding to the extent it involves Partnership items, any such Tax Matter that reasonably could which would adversely affect the liability of Buyer Parties other party for such year or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, prior or subsequent year without the prior written consent of Parent, the other party which consent shall may not be unreasonably withheld, delayed or conditioned. If Buyer Parties object the Purchaser or the Sellers refuse to provide the respective other party with written consent to settle any action that Stockholder Representative proposes such claim, then the parties shall submit the matter to take an Independent Firm and the Independent Firm shall resolve the issue based on a standard of maximal fairness to both the Purchaser and the Sellers.
(d) The Purchaser and the Sellers (or the Parent Entities, as the case may be) shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with (i) the filing of Returns pursuant to Section 6.03 (including such amended Returns for periods (or portions thereof) ending on or prior to the preceding sentenceClosing Date that the Sellers or the Parent Entities may reasonably request the Purchaser to file; provided, Buyer Parties shallhowever, within thirty (30) days after delivery from Stockholder Representative of written notice that if in the Purchaser's reasonable judgment the filing of the intent amended return would be disadvantageous to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such noticePurchaser, the disputed items Purchaser may deny the Sellers' or the Parent Entities' request and the parties shall be resolved by submit the Dispute Advisor matter to an Independent Firm and any determination by the Dispute Advisor shall be final. The Dispute Advisor Independent Firm shall resolve the issue based on a standard of maximal fairness to both the Purchaser and the Sellers or the Parent Entities, as the case may be]) and (ii) any disputed items within ten (10) days of having the item referred audit, litigation or other proceeding with respect to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeTaxes.
Appears in 1 contract
Sources: General Partnership Interest Purchase Agreement (Galileo International Inc)
Contests. (a) Upon receipt by Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from or any Taxing Authority relating to Affiliate of Buyer of any Tax liability notice of the Companies any Audit with respect to a Pre-Closing Tax Period Excluded Taxes or any actions with respect other Taxes for which the Sellers may be liable hereunder (any such Audit, a "TAX MATTER"), Buyer will notify the Sellers of any such Tax Matter within (x) three Business Days if, under applicable Law, the written response to such Tax Matter is required within 20 days after the samereceipt by Buyer of such notice of such Tax Matter, and (y) ten calendar days in all other cases. The Sellers may, at their expense, participate in and, upon notice to Buyer, assume the defense of any such Tax Matter. Upon receipt of such notice from Sellers, Buyer will grant to Sellers a special and limited power of attorney in favor of Sellers, duly authenticated by a Mexican notary public, for lawsuits and collections to permit Sellers to properly defend or contest such Tax Matter. No delay in or failure by Buyer to give notice of Buyer Parties such Tax Matter or the Companies to deliver such written notice in such period shall not affect power of attorney pursuant to this Section 8.3(d) will alter or relieve the rights Sellers of an Indemnified Party under Article 7 with respect their obligation to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication indemnify Buyer, except to the extent that the Indemnifying Party is materially and irrevocably Sellers are prejudiced by thereby or are prevented or in any way restricted from being able to assume the failure to provide defense of such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expenseTax Matter. If the Sellers assume such defense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from Sellers will have the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding authority, with respect to Taxesany Tax Matter, to represent the interests of the applicable Purchased Subsidiary before the relevant Taxing Authority and contestwill have the right to control the defense, resolve compromise or other resolution of any such Tax Matter, including responding to inquiries and defend contesting, defending against and resolving any assessment for additional Taxes, Taxes or notice of Tax deficiency or other adjustment of Taxes of the Companies (eachof, a “or relating to, such Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall the Sellers will not be subject to indemnification under Article 7) reasonable participation rights with respect to so much enter into any settlement of or otherwise compromise any such Tax Matter to the extent that is it could reasonably likely be expected to adversely affect the Tax liability of Buyer Parties any Purchased Subsidiary for a period (or portion thereof) beginning after the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Date without the prior written consent of ParentBuyer, which consent shall not be unreasonably withheld. Buyer has the right (but not the duty) to participate in the defense of such Tax Matter and to employ counsel, delayed or conditionedat its own expense, separate from the counsel employed by the Sellers. If Buyer Parties object elects to participate in the defense of any action that Stockholder Representative proposes Tax Matter, then (i) Buyer shall be entitled to take pursuant (A) without in any way limiting or affecting Sellers' right to assume the preceding sentencedefense of such Tax Matter, Buyer Parties shallparticipate fully in the conduct of such Tax Matter, within thirty including participating in all conferences and attending all meetings with the relevant authorities, and (30B) days after delivery from Stockholder Representative of written notice of consult with the intent to take such actionSellers, notify Stockholder Representative in writing that it so objectsat its own expense, specifying with particularity the objectionable action and stating the specific factual or legal basis for regarding any such objection. If a notice of objection Tax Matter, and Sellers shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate consider in good faith any suggestions made by Buyer, (ii) the Sellers shall provide Buyer with a copy of all documents (or portions thereof) relating to such Tax Matter and use their commercially reasonable efforts (iii) the Sellers will not enter into any settlement of or otherwise compromise any such Tax Matter to resolve such items. If Buyer Parties and Stockholder Representative are unable the extent that it could reasonably be expected to reach such agreement within ten adversely affect the Tax liability of any Purchased Subsidiary for a period (10or portion thereof) days beginning after receipt by Stockholder Representative the Closing Date without the prior written consent of such noticeBuyer, the disputed items which consent shall not be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be finalunreasonably withheld. The Dispute Advisor shall resolve Sellers will allow Buyer to consult with Sellers regarding the conduct of or positions taken in any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeproceeding.
Appears in 1 contract
Contests. Notwithstanding anything to the contrary contained in this Agreement:
(a) Buyer Parties After the Closing Date, Purchaser shall notify Seller in writing within ten (10) days of the date a claim is made or threatened in writing by any Taxing Authority that, if successful, may reasonably be expected to result in an indemnity payment by Seller under Section 10.4 (a "Tax Claim"). Such notice shall contain factual information describing in reasonable detail the nature and basis of such claim and the Companies amount thereof, to the extent known, and shall promptly forward to Stockholder Representative all written notifications and include copies of any notice or other communications document received from any Taxing Authority relating in respect of any such asserted Tax liability. Failure by Purchaser to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect give such notice to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period Seller shall not affect relieve the rights Seller of an Indemnified Party any liability that it may have on account of its indemnification obligation under this Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication X, except to the extent that the Indemnifying Party Seller is materially and irrevocably adversely prejudiced by thereby in the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice defense of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedClaim; provided, however, that Stockholder Representative shall provide irrespective of whether the Seller is materially or adversely prejudiced, Seller may reduce any liability Seller may have on account of its indemnification obligation under this Article X by the amount of its actual, out-of-pocket monetary damages that are caused by the Purchaser's failure to Buyer Parties timely give the notice required pursuant to this Section 10.7(a).
(b) Seller will have the right, at Buyer Parties’ expenseits option, upon timely notice to Purchaser, to assume at its own expense control of any audit or other defense of any Tax Claim (other than a Tax Claim relating solely to Taxes of the Company for a Straddle Period, which as described below, the parties shall jointly control) with its own counsel, provided that Seller's notice acknowledges Seller's indemnification liability for such claim. Seller's right to control a Tax Claim will be limited to issues in respect of which amounts in dispute would be paid by Seller or for which Seller would be liable pursuant to Section 10.4. Costs of defending or contesting such Tax Claims are to be borne by Seller unless the Tax Claim relates to a Straddle Period, in which event such costs shall be fairly apportioned as described below. Purchaser and the Company at their own expense each shall not be subject cooperate with Seller in contesting any Tax Claim, which cooperation shall include the retention and, upon Seller's request, the provision of records and information that are reasonably relevant to indemnification under Article 7) reasonable participation rights such Tax Claim and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder. Notwithstanding the foregoing, Seller shall neither consent nor agree to the settlement of any Tax Claim with respect to so much of such Tax Matter any liability for Taxes that is reasonably likely to may affect the Tax liability for any state, federal or foreign income tax of Buyer Parties the Company or any affiliated group (as defined in section 1504(a) of the Companies Code) of which the Company is a member for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Period without the prior written consent of ParentPurchaser, which consent shall not be unreasonably withheld, delayed conditioned or conditioned. If Buyer Parties object to delayed, and neither Seller, nor any action Affiliate of Seller, shall file an amended Tax Return that Stockholder Representative proposes to take pursuant to may increase the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice liability for Taxes of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis Company for any such objectionPost-Closing Tax Period without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed. If Purchaser and Seller shall jointly control all proceedings taken in connection with any Tax Claims relating solely to a notice Straddle Period of objection the Company and each party shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees bear its own out-of-pocket costs and expenses of the Dispute Advisor contest and all joint costs and expenses of the contest shall be borne equally by Buyer Parties and Stockholder Representativein the same ratio as the applicable proposed Tax would be allocated.
Appears in 1 contract
Contests. (a) Buyer Parties and After the Companies Closing, the Purchaser shall promptly forward to Stockholder Representative all notify the Seller in writing of any written notifications and other communications from any Taxing Authority relating to any Tax liability notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Companies with respect to a Pre-Closing Tax Period or any actions with respect Purchaser which, if determined adversely to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party taxpayer, would be grounds for indemnification under this Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedVII; provided, however, that Stockholder Representative shall provide a failure to Buyer Parties (at Buyer Parties’ expense, which expense shall give such notice will not be subject affect the Purchaser's right to indemnification under Article 7this Agreement except to the extent, if any, that, but for such failure, the Seller could have avoided all or a portion of the Tax liability in question.
(b) reasonable participation rights In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that the Seller acknowledges in writing its responsibility under this Agreement to hold the Purchaser harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to periods ending on or before the Closing Date (or, in the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 7.01(b) to the portion of such year ending on or before the Closing Date), the Seller shall have the right at its expense to participate in and control the conduct of such audit or proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which the Seller has acknowledged its liability; the Purchaser also may participate in any such audit or proceeding and, if the Seller does not assume the defense of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Seller setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Seller has acknowledged its liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or proceeding with respect to so much the latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Seller (as evidenced by its acknowledgment under this Section 7.04) and the Purchaser could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of such the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax Matter periods. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that is reasonably likely to affect must be decided jointly (in particular, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VII by the Tax liability of Buyer Parties or Purchaser and the Companies for any Post-Closing Tax Period. Stockholder Representative Seller.
(d) Neither the Purchaser nor the Seller shall not assert any defenses or claims, enter into any settlement of, compromise or otherwise compromise, agree to settle any such claim pursuant to any Tax Matter that reasonably could audit or proceeding which would adversely affect the liability of Buyer Parties other party for such year or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, a subsequent year without the prior written consent of Parentthe other party, which consent shall may not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve Purchaser and the Seller agree to cooperate in the defense against or compromise of any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeclaim in any audit or proceeding.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sylvan Learning Systems Inc)
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from A party hereto must notify the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, party in writing within thirty (30) days after delivery from Stockholder Representative or such shorter period as may be required thereby of receipt of written notice of any pending or threatened tax examination, audit or other administrative or judicial proceeding that could reasonably be expected to result in an indemnification obligation of such other party pursuant to this Agreement (a "Tax Contest"). If the intent recipient of such notice of a Tax Contest fails to take provide such notice to the other party, it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Contest to the extent, if any, that such failure or delay shall have adversely affected the indemnifying party's ability to defend against, settle, or satisfy any action, notify Stockholder Representative suit or proceeding against it, or any damage, loss, claim, or demand for which the indemnified party is entitled to indemnification hereunder.
(ii) If a Tax Contest directly relates to any Taxes for which Sellers are liable in writing that it so objectsfull hereunder, specifying with particularity Sellers shall at their expense control the objectionable action defense and stating the specific factual or legal basis for any settlement of such objectionTax Contest. If a notice of objection such Tax Contest directly relates to any Taxes for which Purchaser is liable in full hereunder, Purchaser shall be duly delivered, Buyer Parties at its own expense control the defense and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative settlement of such noticeTax Contest.
(iii) Notwithstanding any other provision of this Agreement to the contrary, if a Tax Contest results in an increase in income Taxes for which Sellers are liable hereunder (excluding any income Taxes imposed upon Sellers or Sellers' member and shareholder upon the disputed items sale of the Shares under this Agreement) and such increase is attributable to adjustments based on timing differences which will result in benefits in taxable periods ending subsequent to the Closing Date, Purchaser shall be resolved pay to Sellers, upon Sellers' written request, an amount equal to the present value of the reduction in income Taxes payable by the Dispute Advisor Purchaser in future taxable periods by reason of such reversal, determined by using a discount rate of 5.0% and any determination an assumed tax rate of 40.0% and by assuming that such reduction in income Taxes will occur in the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days year or years of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeanticipated reversal.
Appears in 1 contract
Contests. (a) After the Closing, Buyer Parties shall promptly notify the Seller in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of Buyer or the Company which, if determined adversely to the Company, would be grounds for indemnification under this Agreement.
(b) In the case of an audit or administrative or judicial proceeding that relates to taxable periods ending on or before the date of the Closing, the Seller shall have the right at its expense to participate in and control the conduct of such audit or proceeding; Buyer also may participate in any such audit or proceeding and, if the Seller does not assume the defense of any such audit or proceeding, Buyer may defend the same in such manner as it may deem appropriate, including settling such audit or proceeding after five days prior written notice to the Seller setting forth the terms and conditions of settlement; provided, however, if Buyer gives notice to Seller of the commencement of any audit or administrative or judicial proceedings and the Companies Seller does not, within twenty (20) business days, after Buyer’s notice is given to Seller, give notice to Buyer or Company, as applicable, of its election to assume the defense thereof, then the Seller shall promptly forward to Stockholder Representative all written notifications and other communications from be bound by any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period determination made in such audit or administrative or judicial proceeding or any actions with respect to the samecompromise or settlement thereof effected by Buyer. The failure of Buyer Parties to give reasonably prompt notice of any audit or the Companies to deliver such written notice in such period administrative or judicial proceeding shall not release, waive or otherwise affect the rights of an Indemnified Party under Article 7 Seller’s obligations with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication thereto except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by Seller can demonstrate actual loss as a result of such failure. In the failure event that issues relating to provide such written notice.
(b) (i) Stockholder Representative (a potential adjustment are required to be contested in the same audit or proceeding as separate issues relating to a potential adjustment for which Buyer would be liable, Buyer shall have the right, at Stockholders’ its expense, which shall be paid solely from to control the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxesthe latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Seller and Buyer or the Company could be liable, (i) both the Seller and Buyer may participate in the audit or proceeding, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency (ii) the audit or other adjustment of Taxes proceeding shall be controlled by that party which would bear the burden of the Companies (each, a “Tax Matter”) greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedfuture taxable periods; provided, however, that Stockholder Representative neither Buyer nor the Seller shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, compromise or otherwise compromise, agree to settle any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, matter without the prior written consent of Parentthe other party, which consent shall may not be unreasonably withheld. The principle set forth in this Section 6.4(c) also shall govern for purposes of deciding any issue that must be decided jointly (including choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article 6 by Buyer and the Seller; provided, delayed however, neither Buyer nor Seller shall enter into any compromise or conditioned. If Buyer Parties object agree to settle any such matter without the written consent of the other party, which consent may not be unreasonably withheld.
(d) With respect to any action audit or administrative or judicial proceeding for a taxable period that Stockholder Representative proposes begins before the Closing Date, neither Buyer nor the Seller shall enter into any compromise or agree to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for settle any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it claim pursuant to such procedures as it may require. The costs, fees and expenses audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the Dispute Advisor shall other party, which consent may not be borne equally by unreasonably withheld. Buyer Parties and Stockholder Representativethe Seller agree to cooperate, and Buyer agrees to cause the Company to cooperate, in the defense against or compromise of any claim in any such audit or proceeding.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nbty Inc)
Contests. (a) After the Closing, each of Buyer Parties and Seller shall promptly notify the other party in writing of any written notice of a proposed assessment, audit, contest, proceeding or litigation (a “Contest”) of Buyer or Seller or of any of the Company and the Companies shall promptly forward Subsidiaries which could reasonably be expected to Stockholder Representative all written notifications and result in grounds for payment by such other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party party under this Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written noticeVII.
(b) (i) Stockholder Representative (at Stockholders’ expenseFor all Contests for which either party alone bears the economic burden under Article VII, which such party shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard control all such Contests in connection therewith. In other cases, prior to the Deductible) Closing Date, Seller shall control any audit or examination by any taxing authority all Contests relating to the Company and the Subsidiaries and, after the Closing Date, in the case of a Contest that relates to a non-Consolidated Return (or any other judicial item relating thereto or administrative proceeding with respect reported thereon) for a taxable period ending on or before, or that includes, the Closing Date, Seller shall have the right at its expense to Taxesparticipate in the conduct of such Contest, and contestfor all taxable periods thereafter, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any Buyer shall control such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedContests; provided, however, that Stockholder Representative Seller shall provide control any contest that relates to a Consolidated Return of Seller. If Seller does not assume the defense of any such Contest for a taxable period ending on or before the Closing Date, Buyer Parties (at may defend the same in such manner as it may deem appropriate, including settling such Contest after giving 30 days’ prior written notice to Seller setting forth the terms and conditions of settlement. Notwithstanding the foregoing, Buyer Parties’ expenseshall control any Contests relating to, which expense and shall not be subject under no obligation to indemnification under Article 7) reasonable participation rights dispute or otherwise litigate, any Franchise Fees with respect to so much of which Buyer receives a bona fide request for payment from the applicable franchisor and such Tax Matter Franchise Fees shall be paid by Seller to the extent such Franchise Fees relate to the period prior to the Closing Date, as determined in accordance with Section 7.1 above; provided that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses (and shall cause its Affiliates not to) solicit or claims, enter into any settlement of, or otherwise compromise, arrangement with any such Tax Matter that reasonably could adversely affect the liability franchisor under which payment of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant Franchise Fees relating to the preceding sentenceperiod prior to the Closing Date is made in return for a reduction in Franchise Fees relating to the period on or after the Closing Date or other benefit to Buyer or its Affiliates.
(c) Buyer and Seller agree to cooperate, and Buyer Parties shallagrees to cause the Company and the Subsidiaries to cooperate, within thirty (30) days after delivery from Stockholder Representative in the defense against or compromise of written notice of the intent to take such action, notify Stockholder Representative any claim in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeContest.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fibernet Telecom Group Inc\)
Contests. (a) Buyer Parties and After the Companies Closing Date, Purchaser shall promptly forward to Stockholder Representative all notify Seller, or Seller, CLAC, or FGWLA shall promptly notify Purchaser, in writing of any written notifications and other communications from any Taxing Authority notice of a proposed assessment, audit, examination or claim in a Tax Contest of or relating to any Tax liability of Purchaser, Seller, the Companies with respect to a Pre-Closing Tax Period Seller Subsidiaries, the Transferred Assets or any actions with respect the Business which, if determined adversely to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party taxpayer, would be grounds for indemnification under this Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedXII; provided, however, that Stockholder Representative shall provide a failure to Buyer Parties (at Buyer Parties’ expense, which expense shall give such notice will not be subject affect the rights of a party to indemnification under Article 7this Agreement except to the extent, (i) reasonable participation rights with respect if any, that, but for such failure, the Tax Indemnifying Party could have avoided all or a portion of the Tax liability in question or (ii) such failure otherwise actually materially prejudices the Tax Indemnifying Party.
(b) In the case of a Tax Contest that (i) relates to so much of such Tax Matter that taxable periods ending on or before the Closing Date or (ii) relates to a liability for Taxes for which Seller is reasonably likely to affect the Tax liability of Buyer Parties indemnify Purchaser or the Companies for Seller Subsidiaries pursuant to this Agreement or the Ancillary Agreements, Seller shall have the right at its expense to participate in, control the conduct of, and, subject to Purchaser’s consent pursuant to Section 12.04(c), settle such Tax Contest. Purchaser shall control all other Tax Contests and have the right to participate in all Tax Contests (including with respect to which Seller possesses the right to control) which are reasonably likely to result in an adverse material effect to Purchaser, any Post-Closing Tax Period. Stockholder Representative Affiliate of Purchaser or the Seller Subsidiaries.
(c) None of Purchaser, the Seller Subsidiaries or any Affiliate of either, nor Seller or any Affiliate of Seller, shall not assert any defenses or claims, enter into any settlement of, compromise or otherwise compromise, agree to settle any such claim pursuant to any Tax Matter that reasonably could Contest which would adversely affect the liability of Buyer Parties or the Companies other party for any Taxes, as to which the Stockholders would not be liable hereunder, year without the prior written consent of Parentthe other party, which consent shall may not be unreasonably withheld, delayed conditioned or conditioneddelayed. If Buyer Parties object Purchaser and Seller agree to reasonably cooperate, and Purchaser agrees to cause the Seller Subsidiaries to reasonably cooperate, in the defense against or compromise of any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeTax Contest.
Appears in 1 contract
Contests. (aA) If the Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such Company receives written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax pending or Damage directly or indirectly related to the subject matter of such written notification threatened audit or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority Governmental Authority, or any other judicial or administrative proceeding with respect proceedings relating to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax MatterContest”) for that would reasonably be expected to result in Losses that are indemnifiable under this Agreement, the Buyer shall promptly notify the Sellers’ Representative. If the Sellers’ Representative or any Pre-Closing Seller receives written notice of a Tax Period Contest that would reasonably be expected to result in Losses that are indemnifiable under this Agreement, such Party shall promptly notify the Buyer. In each case within this clause (but for this purpose excluding any Straddle Period) but only v), the failure or delay in delivering such notice shall not relieve a Party of its obligations hereunder except to the extent the Stockholders have an obligation with respect that such Party is actually and materially prejudiced by such failure or delay.
(B) If such Tax Contest relates solely to any such Tax Matter under Article 7Past Period, including through recovery against and not to the Indemnification Escrow AccountStraddle Period or any post-Closing period, which has not expired or lapsed; provided, however, that Stockholder the Sellers’ Representative shall provide have the right (but not the obligation), to Buyer Parties be exercised within ten (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 710) reasonable participation rights with respect to so much Business Days following its receipt of the written notice of such Tax Matter that Contest by delivering written notice to the Buyer, to assume and thereafter conduct and control the defense of such Tax Contest (with counsel of the Sellers’ Representative’s choice). For so long as the Sellers’ Representative is reasonably likely conducting and controlling such defense, the Buyer shall have the right, but not the obligation, to affect participate in such defense with separate counsel of its choosing at its sole cost and expense. None of the Tax liability of Buyer Parties Sellers or the Companies for any Post-Closing Tax Period. Stockholder Sellers’ Representative shall not assert be permitted to consent to the entry of any defenses judgment or claims, enter into any settlement of, or otherwise compromise, any of such Tax Matter that reasonably could Context which may adversely affect impact the liability of Buyer Parties or the Companies Company for any Taxes, as to which a post-Closing period or the Stockholders would not be liable hereunder, Tax attributes of the Company without the prior written consent of Parent, which consent shall the Buyer (not to be unreasonably withheld, delayed conditioned, or conditioneddelayed).
(C) Unless and until the Sellers’ Representative assumes the defense of such Tax Contest, the Buyer may defend against such Tax Contest in any manner it may reasonably deem appropriate (with counsel of the Buyer’s choice), in which case the Sellers’ Representative (I) shall cooperate with the Buyer in such defense and make available to the Buyer and its Representatives all witnesses, pertinent records, materials, and information in or under the Sellers’ Representative’s possession or control relating thereto as may be reasonably requested by the Buyer, and (II) shall have the right, but not the obligation, to participate in such defense with separate counsel of its choosing at its sole cost and expense. If The conduct of such defense by the Buyer Parties object shall not be construed to be a waiver of the Buyer’s right to indemnification with respect to such Tax Contest.
(D) For the avoidance of doubt, the procedures relating to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection Tax Contest shall be duly delivered, Buyer Parties governed by this clause (v) and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt not by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder RepresentativeSection 7(d)(ii).
Appears in 1 contract
Sources: Stock Purchase Agreement (Travelzoo)
Contests. (a) Buyer Parties The Sellers and their duly appointed representatives shall have the Companies shall promptly forward exclusive authority to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or authority, to initiate any other judicial or administrative proceeding with respect claim for refund, to Taxes, amend any Tax return and to contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any liability of the Companies (each, a “Target or its Subsidiaries for Taxes reflected on any Tax Matter”) for returns covering any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7Periods; PROVIDED, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, howeverHOWEVER, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7a) reasonable participation rights with respect to so much neither the Sellers nor any of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereundertheir duly appointed representatives shall, without the prior written consent of Parentthe Buyer, which consent shall not be unreasonably withheld, delayed file any claim for refund, amend any Tax return or conditionedenter into any settlement of any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Buyer or any of its Affiliates for any Tax period beginning after the Closing Date (a "POST-CLOSING PERIOD") or any portion of an Overlap Period beginning after the Closing Date, and (b) neither the Sellers nor any of their duly appointed representatives shall, without the prior consent of the Buyer, which consent shall not unreasonably be withheld, enter into any settlement of any contest or otherwise compromise any issue that would increase any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Buyer of any amount under Section 9.3 unless the Sellers shall have agreed to indemnify the Buyer for payment of such Taxes. If Buyer Parties object and its duly appointed representatives shall have the exclusive authority to control any audit or other proceeding relating to Taxes for any taxable year or other taxable period ending after the Closing Date; PROVIDED, HOWEVER, that (a) neither Buyer, the Target nor any of their duly appointed representatives shall, without the prior written consent of the Sellers, which consent shall not be unreasonably withheld, enter into any settlement of any contest or otherwise compromise any issue that affects or may affect the Tax liability of the Sellers or any of their affiliates for any Pre-Closing Period or any portion of the Overlap Period ending on the Closing Date, and (b) neither Buyer, the Target nor any of their duly appointed representatives shall, without the prior consent of the Sellers, which consent shall not unreasonably be withheld, enter into any settlement of any contest or otherwise compromise any issue that would reduce any liability accruals for Taxes as of the Closing Date or would otherwise require payment by the Sellers of any amount under Section 9.3 unless Buyer shall have waived or caused to be waived for itself and the Target any right to indemnification for Taxes from the Sellers. The Sellers shall be entitled to any action that Stockholder Representative proposes to take pursuant Tax refund relating to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice Target and its Subsidiaries to the extent such Tax refund relates to any Pre-Closing Period or any portion of the intent to take Overlap Period ending on the Closing Date, unless such action, notify Stockholder Representative refund has been recorded as an Asset on the Closing Balance Sheet in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection which case Buyer shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeentitled thereto.
Appears in 1 contract
Contests. Whenever any taxing authority makes a written assertion of a claim for or dispute regarding, or assessment of, Taxes for which the Indemnifying Securityholders are liable or required to provide indemnification under this Article VI, the Buyer shall, if informed of such an assertion or assessment, inform the Indemnifying Securityholders within fifteen (a15) business days; provided, that any failure to inform the Indemnifying Securityholders shall not relieve the Indemnifying Securityholders of their obligation to provide the indemnity required hereunder. The Indemnifying Securityholders shall have the right to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or dispute to the extent such proceedings or determinations affect the amount of Taxes for which the Indemnifying Securityholders are liable or required to provide indemnification under this Article VI, except that the Buyer Parties and shall have the Companies shall promptly forward right to Stockholder Representative all written notifications and other communications from any Taxing Authority relating consent to any Tax liability settlement to the extent such proceedings or settlement could reasonably be expected to affect the amount of Taxes imposed on the Companies with respect to a Buyer, the Surviving Corporation or any Subsidiary for taxable periods or portions thereof beginning after the Pre-Closing Tax Period Periods. Whenever any taxing authority makes a written assertion of a claim for or dispute regarding, or assessment of, Taxes for which the Buyer is liable or required to provide indemnification under this Article VI, the Indemnifying Securityholders shall, if informed of such assertion or assessment, inform the Buyer within fifteen (15) business days; provided, that any actions with respect failure to inform the sameIndemnifying Securityholders shall not relieve the Indemnifying Securityholders of their obligation to provide the indemnity required hereunder. The failure of Buyer Parties shall have the right to control any resulting proceedings and to determine whether and when to settle any such claim, assessment or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication dispute, except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by Securityholders shall have the failure right to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parentconsent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant settlement to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative extent such proceedings could reasonably be expected to materially affect the amount of written notice of Taxes for which the intent Indemnifying Securityholders are liable under or required to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeprovide indemnification this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Brookdale Senior Living Inc.)
Contests. (ai) Buyer Parties and Carrier (at Carrier’s own expense) shall be entitled to control the Companies shall promptly forward defense (including as to Stockholder Representative all written notifications and settlement, except as provided below) of any audit, litigation, proceeding, or other communications from any Taxing Authority relating action with respect to any Taxes (a “Tax liability of the Companies Proceeding”) with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or (other communication except than a Straddle Period, Straddle Periods being governed by Section 11.01(h)(iii) below) to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expenseaudit, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard litigation, proceeding or other action relates to the Deductible) shall control any audit Company or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies Northeast Business Contributed Assets (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7Northeast Business Audits”), including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense Carrier shall not be subject cause the Company to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter enter into a settlement that is reasonably likely to affect by its terms, and without Watsco’s prior written consent, binds the Tax liability of Buyer Parties or the Companies Company for any a Post-Closing Tax PeriodPeriod as a result of the settlement of such Pre-Closing Northeast Business Audit. Stockholder Representative The Company shall be entitled to control such Tax Proceeding (at Carrier’s expense) to the extent Carrier does not exercise its right to control a Tax Proceeding pursuant to this Section 11.01(h)(i). The Parties agree that the Company shall not assert any defenses or claimsbe permitted to settle, enter into any settlement ofcompromise, or otherwise compromisedischarge any Pre-Closing Northeast Business Audit, or admit any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunderwith respect thereto, without the prior written consent of ParentCarrier.
(ii) Watsco (at Watsco’s own expense) shall be entitled to control the defense (including as to settlement, except as provided below) of any Tax Proceeding with respect to a Pre-Closing Tax Period (other than a Straddle Period, Straddle Periods being governed by Section 11.01(h)(iv) below) to the extent such Tax Proceeding relates to the Homans Business Contributed Assets (“Pre-Closing Homans Business Audit”), provided, however, that Watsco shall not cause the Company to enter into a settlement that by its terms, and without Carrier’s prior written consent, binds the Company for a Post-Closing Tax Period as a result of the settlement of such Pre-Closing Homans Business Audit. The Company shall be entitled to control such Tax Proceeding (at Watsco’s expense) to the extent Watsco does not exercise its right to control a Tax Proceeding pursuant to this Section 11.01(h)(ii).
(iii) In the case of a Tax Proceeding for a Straddle Period with respect to the Company or the Northeast Business Contributed Assets, if such Tax Proceeding relates or could reasonably be expected to relate to both a claim for Taxes with respect to the Company or the Northeast Business Contributed Assets (“Northeast Business Taxes”) for a Pre-Closing Tax Period and a claim for Northeast Business Taxes for a Post-Closing Tax Period, and such claim for Northeast Business Taxes for a Pre-Closing Tax Period is not separable from such claim for Northeast Business Taxes for a Post-Closing Tax Period, the Company (if the claim for Northeast Business Taxes that are for a Post-Closing Tax Period exceeds or reasonably could be expected to exceed in amount the claim for Northeast Business Taxes for a Pre-Closing Tax Period) or otherwise Carrier (Carrier or the Company, as the case may be, the “Northeast Business Tax Contest Controlling Party”), shall be entitled to control the defense of such Tax Proceeding. In such case, the other Party (the “Northeast Business Tax Contest Non-Controlling Party”) shall be entitled to participate fully (at the Northeast Business Tax Contest Non-Controlling Party’s sole expense) in the conduct of such Tax Proceeding and the Northeast Business Tax Contest Controlling Party shall not settle, compromise, or discharge such Tax Proceeding without the consent of such Northeast Business Tax Contest Non-Controlling Party (which consent shall not be unreasonably withheld, delayed withheld or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be finaldelayed). The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees costs and expenses of conducting the Dispute Advisor defense of such Tax Proceeding shall be borne equally by Buyer Parties reasonably apportioned based on the relative amounts of the claim for Northeast Business Taxes for a Pre-Closing Tax Period and Stockholder Representativethe claim for Northeast Business Taxes for a Post-Closing Tax Period.
(iv) In the case of a Tax Proceeding for a Straddle Period with respect to the Homans Business Contributed Assets, if such Tax Proceeding relates or could reasonably be expected to relate to both a claim for Taxes with respect to the Homans Business Contributed Assets (“Homans Business Taxes”) for a Pre-Closing Tax Period and a claim for Homans Business Taxes for a Post-Closing Tax Period, and such claim for Homans Business Taxes for a Pre-Closing Tax Period is not separable from such claim for Homans Business Taxes for a Post-Closing Tax Period, the Company (if the claim for Homans Business Taxes that are for a Post-Closing Tax Period exceeds or reasonably could be expected to exceed in amount the claim for Homans Business Taxes for a Pre-Closing Tax Period) or otherwise Watsco (Watsco or the Company, as the case may be, the “Homans Business Tax Contest Controlling Party”), shall be entitled to control the defense of such Tax Proceeding. In such case, the other Party (the “Homans Business Tax Contest Non-Controlling Party”) shall be entitled to participate fully (at the Homans Business Tax Contest Non-Controlling Party’s sole expense) in the conduct of such Tax Proceeding and the Homans Business Tax Contest Controlling Party shall not settle, compromise, or discharge such Tax Proceeding without the consent of such Homans Business Tax Contest Non-Controlling Party (which consent shall not be unreasonably withheld or delayed). The costs and expenses of conducting the defense of such Tax Proceeding shall be reasonably apportioned based on the relative amounts of the claim for Homans Business Taxes for a Pre-Closing Tax Period and the claim for Homans Business Taxes for a Post-Closing Tax Period.
Appears in 1 contract
Contests. Notwithstanding anything to the contrary contained in this Agreement:
(a) Buyer Parties After the Closing Date, Purchaser shall notify Seller in writing within ten (10) days of the date a claim is made or threatened in writing by any Taxing Authority that, if successful, may reasonably result in an indemnity payment by Seller under Section 6.4 (a "Tax Claim"). Such notice shall contain factual information describing in reasonable detail the nature and basis of such claim and the Companies amount thereof, to the extent known, and shall promptly forward to Stockholder Representative all written notifications and include copies of any notice or other communications document received from any Taxing Authority relating in respect of any such asserted Tax liability. Failure by Purchaser to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or any actions with respect give such notice to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period Seller shall not affect relieve the rights Seller of an Indemnified Party any liability that it may have on account of its indemnification obligation under this Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication VI, except to the extent that the Indemnifying Party Seller is materially and irrevocably adversely prejudiced by thereby in the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice defense of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedClaim; provided, however, that Stockholder Representative irrespective of whether the Seller is materially or adversely prejudiced, Seller shall provide be permitted to Buyer Parties reduce any liability Seller may have on account of its indemnification obligation under this Article VI by the amount of its actual, out-of-pocket monetary damages that are caused by the Purchaser's failure to timely give the notice required pursuant to this Section 6.7(a).
(b) Seller will have the right, at Buyer Parties’ expenseits option, upon timely notice to Purchaser, to assume at its own expense control of any audit or other defense of any Tax Claim (other than a Tax Claim relating solely to Taxes of RSA SLISI for a Straddle Period, which as described below, the parties shall jointly control) with its own counsel, provided that Seller's notice acknowledges Seller's indemnification liability for such claim. Seller's right to control a Tax Claim will be limited to issues in respect of which amounts in dispute would be paid by Seller or for which Seller would be liable pursuant to Section 6.4. Costs of defending or contesting such Tax Claims are to be borne by Seller unless the Tax Claim relates to a Straddle Period, in which event such costs shall be fairly apportioned as described below. Purchaser and RSA SLISI at their own expense each shall not be subject cooperate with Seller in contesting any Tax Claim, which cooperation shall include the retention and, upon Seller's request, the provision of records and information that are reasonably relevant to indemnification under Article 7) reasonable participation rights such Tax Claim and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder. Notwithstanding the foregoing, Seller shall neither consent nor agree to the settlement of any Tax Claim with respect to so much of such Tax Matter any liability for Taxes that is reasonably likely to may affect the Tax liability for any state, federal or foreign income tax of Buyer Parties RSA SLISI or any affiliated group (as defined in section 1504(a) of the Companies Code) of which RSA SLISI is a member for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Period without the prior written consent of ParentPurchaser, which consent shall not be unreasonably withheld, delayed conditioned or conditioned. If Buyer Parties object to delayed, and neither Seller, nor any action Affiliate of Seller, shall file an amended Tax Return that Stockholder Representative proposes to take pursuant to may increase the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative liability for Taxes of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis RSA SLISI for any such objectionPost-Closing Tax Period without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed. If Purchaser and Seller shall jointly control all proceedings taken in connection with any Tax Claims relating solely to a notice Straddle Period of objection RSA SLISI and each party shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees bear its own out-of-pocket costs and expenses of the Dispute Advisor contest and all joint costs and expenses of the contest shall be borne equally by Buyer Parties and Stockholder Representativein the same ratio as the applicable proposed Tax would be allocated.
Appears in 1 contract
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from Whenever any Taxing Authority relating to any Tax liability asserts a claim, makes an assessment, or otherwise disputes the amount of the Companies with respect to a Pre-Closing Tax Period or any actions Taxes with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect Purchased Assets relating solely to any Tax period ending on or Damage directly or indirectly related to before the subject matter Closing Date, Purchaser shall upon receipt of such written notification assertion, use reasonable best efforts to promptly inform Seller in writing and Seller shall have the right to control any resulting Actions and to determine whether and when to settle any such claim, assessment or other communication except dispute to the extent that such Actions or determinations affect the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment amount of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for which Seller may be liable under this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedAgreement; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expensethe extent such claim, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that assessment, or dispute is reasonably likely expected to affect the Tax liability Purchaser or any of Buyer Parties or the Companies its Affiliates for any Post-Closing Tax Period. Stockholder Representative , Purchaser shall be entitled to participate in such Tax Action at its own expense and attend any meetings or conferences with the relevant Taxing Authority, and Seller, Sigma, the Sigma entities, or their Affiliates, as applicable shall not assert any defenses settle, compromise or claims, enter into any settlement of, or otherwise compromise, abandon any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties claim, assessment or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, dispute without obtaining the prior written consent of ParentPurchaser, which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed. If Buyer Parties object Whenever any Taxing Authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes relating to any action that Stockholder Representative proposes Straddle Period or any Post-Closing Tax Period, Purchaser shall have the right to take pursuant control any resulting Actions and to determine whether and when to settle any such claim, assessment or dispute, except in the case of a Straddle Period Tax Return to the preceding sentenceextent such claim, Buyer Parties shallassessment, within thirty (30) days after delivery from Stockholder Representative or dispute is reasonably expected to affect Seller or any of written notice of its Affiliates, Seller shall be entitled to participate in such claim, assessment, or dispute at its own expense and attend any meetings or conferences with the intent to take such actionrelevant Taxing Authority, notify Stockholder Representative in writing that it so objectsand Purchaser shall not settle, specifying with particularity the objectionable action and stating the specific factual compromise or legal basis for abandon any such objection. If a notice claim, assessment or dispute without obtaining the prior written consent of objection Seller, which such consent shall not be duly deliveredunreasonably withheld, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeconditioned or delayed.
Appears in 1 contract
Contests. (a) Buyer Parties and the Companies Parent shall promptly forward to Stockholder Representative all notify the other Party in writing upon receipt of written notifications and notice of any pending or threatened audit, notice of deficiency, examination, assessment or any other communications from administrative proceeding or court proceedings including any Taxing Authority relating to further litigation before any tribunal or Court of any level (“Audit”) which may affect any Tax liability of for which the Companies with respect to a Pre-Closing Tax Period or any actions with respect to the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure liable pursuant to provide such written noticeSection 6.1.
(b) Parent shall have the sole right, at its own expense, to (i) Stockholder Representative represent the interests of Parent and the Company and the Selling Companies in respect of the Business in any Audit relating to Tax period ending on or before the Closing Date, (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first ii) employ counsel of its choice in connection therewith and then from the Indemnification Escrow Account without regard (iii) settle any Audit relating in all or in part to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) Company or to Taxes in respect of the Business Assets for any Pre-taxable period ending on or before the Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedDate; provided, however, that Stockholder Representative (A) Parent shall provide keep Buyer advised as to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much the current status and progress of such Audit and (B) neither Parent nor its Affiliates shall settle any Audit relating (in whole or in part) to Taxes of the Company or in respect of the Business Assets for a Tax Matter that is reasonably likely to affect period ending on or before the Tax liability of Buyer Parties or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, Date without the prior written consent of Parent, which Buyer (such consent shall not to be unreasonably withheld).
(c) Buyer shall have the sole right, delayed at its own expense, to (i) control any Audit in respect of the Company or conditioned. If the Business Assets with respect to a Straddle Period and (ii) employ counsel of its choice in connection therewith, provided, however, that (A) Buyer Parties object to any action that Stockholder Representative proposes to take pursuant shall keep Parent advised as to the preceding sentencecurrent status and progress of such Audit, Buyer Parties shall, within thirty (30B) days after delivery from Stockholder Representative of written notice of Parent shall have the intent right to take such action, notify Stockholder Representative participate (at Parent’s own expense) in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection Audit, and Buyer shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate consider in good faith any comments provided by Parent and use their commercially reasonable efforts (C) neither Buyer nor any of its Affiliates shall settle any Audit relating (in whole or in part) to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses Taxes of the Dispute Advisor shall Company or in respect of the Business Assets for any Straddle Period without the prior written consent of Parent (such consent not to be borne equally by Buyer Parties and Stockholder Representativeunreasonably withheld).
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Integra Lifesciences Holdings Corp)
Contests. (a) Buyer Parties and the Companies shall promptly forward to Stockholder Representative all written notifications and other communications from Whenever any Taxing Authority relating to sends a notice of any Tax liability audit, initiates an examination of the Companies with respect to Company, or otherwise asserts a Pre-Closing Tax Period claim, makes an assessment, or any actions with respect to disputes the same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except to the extent that the Indemnifying Party is materially and irrevocably prejudiced by the failure to provide such written notice.
(b) (i) Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment amount of Taxes of the Companies (each, a “Tax MatterContest”) for any with respect to any:
(i) Pre-Closing Tax Period (but for this purpose excluding any a Straddle Period), Buyer shall promptly inform Interest Sellers and Interest Sellers shall have the right to control any resulting Proceedings (at their own expense) but only and, subject to the extent the Stockholders have an obligation with respect immediately following sentence, to determine whether and when to settle any such Tax Contest; provided however, that (A) Interest Sellers shall keep Buyer apprised of all developments relating to any such Tax Matter under Article 7, including through recovery against Contest and shall conduct the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative defense of any such Tax Contest diligently and in good faith and (B) Buyer shall provide have the right to Buyer Parties (participate in such Tax Contest at Buyer Parties’ its own expense, which expense . Interest Sellers shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much settle, compromise and/or concede any portion of a Tax Contest if such Tax Matter that is reasonably likely to affect the Tax liability of settlement, compromise and/or concession would have an adverse impact on Buyer Parties or the Companies Company for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunderincluding a post-Closing Straddle Period, without the prior written consent of ParentBuyer, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object If, with respect to any action that Stockholder Representative proposes Tax Contest, Interest Sellers fail diligently to take pursuant defend or prosecute such Tax Contest to a final determination, then Buyer shall at any time thereafter have the right (but not the obligation) to defend or prosecute, at the sole cost, expense and risk of Interest Sellers, such Tax Contest. Buyer shall have full control of such defense or prosecution and such Proceedings, including any settlement or compromise thereof; or
(ii) Post-Closing Tax Period (including a Straddle Period), Buyer shall have the right to control any resulting Proceedings and, subject to the preceding immediately following sentence, to determine whether and when to settle any such Tax Contest; provided, however, in the case of a Tax Contest that relates to a Straddle Period, Interest Sellers shall have the right to participate in such Tax Contest at their own expense. Buyer Parties shallshall not settle, within thirty (30) days after delivery from Stockholder Representative compromise and/or concede any portion of written notice of the intent to take a Tax Contest if such actionsettlement, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis compromise and/or concession would have an adverse impact on Interest Sellers for any such objection. If Pre-Closing Tax Period, including a notice pre-Closing Straddle Period, without the consent of objection Interest Sellers, which consent shall not be duly deliveredunreasonably withheld, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures as it may require. The costs, fees and expenses of the Dispute Advisor shall be borne equally by Buyer Parties and Stockholder Representativeconditioned or delayed.
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (Montauk Renewables, Inc.)
Contests. (a) Buyer Parties and After the Companies Closing, Purchaser shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to notify Seller in writing of the commencement of any Tax liability audit or administrative or judicial proceeding or of the Companies with respect to a Pre-Closing Tax Period any demand or claim on Purchaser or any actions with respect Company which, if determined adversely to the sametaxpayer or after the lapse of time, would be grounds for indemnification under Section
7.01. The failure of Buyer Parties or the Companies to deliver such written Such notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Tax or Damage directly or indirectly related to the subject matter of such written notification or other communication except contain factual information (to the extent that known) describing the Indemnifying Party asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax authority in respect of any such asserted Tax liability. If Purchaser fails to give Seller prompt notice of an asserted Tax liability as required by this Section 7.03, then (a) if Seller is materially and irrevocably prejudiced precluded by the failure to provide give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Seller shall not have any obligation to indemnify for any loss arising out of such written noticeasserted Tax liability, and (b) if Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to Seller, then any amount which Seller is otherwise required to pay Purchaser pursuant to Section 7.01 with respect to such liability shall be reduced by the amount of such detriment.
(b) (i) Stockholder Representative (Seller may elect to direct, through counsel of its own choosing and at Stockholders’ its own expense, which shall be paid solely from the Stockholder Representative Expense Amount first any audit, claim for refund and then from the Indemnification Escrow Account without regard to the Deductible) shall control administrative or judicial proceeding involving any audit or examination by any taxing authority or any other judicial or administrative proceeding asserted liability with respect to Taxeswhich indemnity may be sought under Section 7.01 (any such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "Contest"). If Seller elects to direct a Contest, it shall within 30 days of receipt of the notice of asserted Tax liability notify Purchaser of its intent to do so, and Purchaser shall cooperate and shall cause each Company to cooperate, at the expense of Seller, in each phase of such Contest. Seller shall keep Purchaser informed regarding the progress but not any substantive aspect of any Contest which Seller has elected to direct. If Seller elects not to direct the Contest, fails to notify Purchaser of its election as herein provided or contests its obligation to indemnify under Section 7.01, Purchaser or the relevant Company may pay, compromise or contest, resolve and defend against at its own expense, such asserted liability. However, in such case, neither Purchaser nor such Company may settle or compromise any assessment for additional Taxes, notice asserted liability over the objection of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsedSeller; provided, however, that Stockholder Representative shall provide consent to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties settlement or the Companies for any Post-Closing Tax Period. Stockholder Representative shall not assert any defenses or claims, enter into any settlement of, or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent compromise shall not be unreasonably withheld. In any event, delayed or conditionedSeller may participate, at its own expense, in the Contest. If Buyer Parties object Seller chooses to any action that Stockholder Representative proposes direct the Contest, Purchaser shall promptly empower and shall cause the relevant Company promptly to take pursuant to the preceding sentence, Buyer Parties shall, within thirty empower (30by power of attorney and such other documentation as may be appropriate) days after delivery from Stockholder Representative such representatives of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by Stockholder Representative of such notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (10) days of having the item referred to it pursuant to such procedures Seller as it may require. The costs, fees designate to represent Purchaser and expenses of such Company in the Dispute Advisor shall Contest insofar as the Contest involves an asserted Tax liability for which Seller would be borne equally by Buyer Parties and Stockholder Representativeliable under Section 7.01.
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