Common use of Control of Tax Contests Clause in Contracts

Control of Tax Contests. (a) Except as otherwise provided in this Section 5.03, (i) Company shall have the exclusive authority to represent each member of the DeepFlex Group before any Tax Authority or before any court with respect to any Tax Contest affecting the Tax liability of any member of the DeepFlex Group or the Company Group for any period beginning before the Contribution Date, and (ii) Company shall have full responsibility and discretion in handling, settling or contesting all other Tax Contests relating to the Company Group, and Offshore and DeepFlex shall have no right to participate in the handling, settling or contesting of such other Tax Contests. (b) Company shall allow Offshore or DeepFlex to assume control of the defense or prosecution, as the case may be, of the portion of any Tax Contest (other than Tax Contests described in Section 5.03(c)), if such portion relates exclusively to a Tax Item of a member of the DeepFlex Group or to a Tax of TODI for which Offshore or DeepFlex is potentially liable to make a payment to Company pursuant to this Agreement, provided that, prior to assuming such control, Offshore or DeepFlex, as the case may be, reaffirms in writing its potential indemnification obligation with respect to such Taxes under this Agreement. Anything in this Section 5.03 to the contrary notwithstanding, (i) Company shall have the right to participate, at its own expense, in any portion of a Tax Contest controlled by Offshore or DeepFlex pursuant to this Section 5.03(b), (ii) Offshore or DeepFlex shall not settle any portion of a Tax Contest controlled by it pursuant to this Section 5.03(b) without Company's consent, which consent shall not be unreasonably withheld, provided that if Company does not consent to such settlement proposal and such settlement would not have adversely affected the Company Group and TODI, the obligations of Offshore and DeepFlex hereunder shall be limited to the amount that would have resulted if the settlement had been approved, and (iii) Company shall have the right to settle (and to cause Offshore and DeepFlex to settle) any portion of a Tax Contest controlled by Offshore or DeepFlex pursuant to this Section 5.03(b) if such settlement would be reasonable for a person liable for all Taxes of all members of the Company Group, the DeepFlex Group and the Offshore Group for all periods, determined as if the only Tax Items disputed under the Tax Contest were the Tax Items disputed under the portion of the Tax Contest controlled by Offshore or DeepFlex under this paragraph (and, if Offshore or DeepFlex disputes whether the proposed settlement would be reasonable for a person liable for all Taxes of all members of the Company Group, the DeepFlex Group and the Offshore Group for all periods, determined as if the only Tax Items disputed under the Tax Contest were the Tax Items disputed under the portion of the Tax Contest controlled by Offshore or DeepFlex under this paragraph, the parties shall utilize the dispute mechanism provided for in Article VI and the Accounting Firm shall decide whether Company has the right to settle (or to cause settlement of) the Tax Contest under this clause (iii)). If neither Offshore nor DeepFlex assumes control of the defense or prosecution, as the case may be, of the portion of any Tax Contest described in the first sentence of this paragraph, Offshore and DeepFlex shall indemnify Company for fees and expenses incurred by Company in connection with Company's defense or prosecution of such portion of such Tax Contest. (c) Company and Offshore shall jointly control (and each party shall bear their own expenses in connection with) any Tax Contest relating to the Merger Transactions, to the extent that such Tax Contest could result in Offshore or DeepFlex making a payment to Company hereunder and Offshore or DeepFlex reaffirms in writing its potential indemnification obligation under this Agreement. Company shall have the authority to settle any such Tax Contest with the consent of Offshore or DeepFlex, which consent shall not be unreasonably withheld. If Offshore withholds consent to settlement of a Tax Contest and such settlement would not have resulted in Offshore and DeepFlex making any payments to Company in excess of payments actually made pursuant to the ultimate resolution of the Tax Contest, Offshore shall indemnify Company for any Taxes owed by Company that would not have been owed had Offshore consented to the settlement. Likewise, Offshore shall have the authority to settle any such Tax Contest with the consent of Company, which consent shall not be unreasonably withheld. If Company withholds consent to settlement of a Tax Contest and such settlement would not have adversely affected Company, the obligations of Offshore and DeepFlex hereunder shall be limited to the amount that would have resulted if Company had consented to the settlement. (d) In the case of any Tax Contest which relates exclusively to Taxes of members of the Offshore Group or DeepFlex Group for which Offshore, DeepFlex or the members of the Offshore Group or the DeepFlex Group have no obligation to make a payment to Company under this Agreement, Offshore, DeepFlex or the applicable member(s) of the Offshore Group or the DeepFlex Group shall have exclusive control over the Tax Contest; provided that Company shall be allowed to participate (at its own expense) in such Tax Contest if the resolution of the Tax Contest could result in a Tax Detriment to any member of the Company Group. (e) Offshore will allow TODI and its representatives to participate (at its own expense) in any audits of the Offshore federal consolidated income (or state combined, unitary or consolidated) Tax Returns to the extent such Tax Returns relate to TODI. Offshore will not settle any such audit in a manner which would adversely affect TODI after the TODI Payment Date without the prior written consent of Company.

Control of Tax Contests. (a) Except as otherwise provided in this Section 5.03, (i) Company The Parties shall notify each other within fifteen (15) days of receiving written notice of any pending or threatened Tax Contest relating to a Pre-Closing Tax Period. Caladrius shall, at its election, have the exclusive authority right to represent each member of the DeepFlex Group before Company’s interest in and control any such Tax Authority Contest relating to a Pre-Closing Tax Period or before any court with respect to any Tax Contest affecting the Tax liability Taxes for which Caladrius may have to indemnify Purchaser, employ counsel of any member of the DeepFlex Group or the Company Group for any period beginning before the Contribution Dateits choice at its expense, and (ii) Company shall have full responsibility otherwise control at its own cost and discretion in handlingexpense the conduct of such Tax Contest, settling or contesting all other Tax Contests relating to the Company Group, and Offshore and DeepFlex extent permitted by applicable Law. Purchaser shall have no right to participate in the handling, settling or contesting of such other Tax Contests. (b) Company shall allow Offshore or DeepFlex to assume control of the defense or prosecution, as the case may be, of the portion of any Tax Contest (other than Tax Contests described in Section 5.03(c)), if such portion relates exclusively to a Tax Item of a member of the DeepFlex Group or to a Tax of TODI for which Offshore or DeepFlex is potentially liable to make a payment to Company pursuant to this Agreement, provided that, prior to assuming such control, Offshore or DeepFlex, as the case may be, reaffirms in writing its potential indemnification obligation with respect to such Taxes under this Agreement. Anything in this Section 5.03 to the contrary notwithstanding, (i) Company shall have the right be entitled to participate, at its own cost and expense, in any portion of a such Tax Contest controlled by Offshore or DeepFlex pursuant to this Section 5.03(b), (ii) Offshore or DeepFlex and Caladrius shall not settle or dispose of any portion of a such Tax Contest controlled by it pursuant without the prior written consent of Purchaser (not to this Section 5.03(b) without Company's consent, which consent shall not be unreasonably withheld, provided that if Company does not consent to such settlement proposal and such settlement would not have adversely affected the Company Group and TODI, the obligations of Offshore and DeepFlex hereunder shall be limited to the amount that would have resulted if the settlement had been approved, and (iii) Company shall have the right to settle (and to cause Offshore and DeepFlex to settle) any portion of a Tax Contest controlled by Offshore or DeepFlex pursuant to this Section 5.03(b) if such settlement would or disposal could reasonably be reasonable for expected to have a person liable for all Taxes material adverse impact on Purchaser or Company. For purposes of all members this Section 10.4(b)(i), Caladrius shall have ten (10) days (with such 10-day period commencing from the earlier of the Company Group, the DeepFlex Group and the Offshore Group for all periods, determined as if the only Tax Items disputed under the date it receives written notice of any pending or threatened Tax Contest were or the Tax Items disputed under the portion expiration of the Tax Contest controlled by Offshore or DeepFlex under this paragraph (and, if Offshore or DeepFlex disputes whether the proposed settlement would be reasonable for a person liable for all Taxes of all members of the Company Group, the DeepFlex Group and the Offshore Group for all periods, determined as if the only Tax Items disputed under the Tax Contest were the Tax Items disputed under the portion of the Tax Contest controlled by Offshore or DeepFlex under this paragraph, the parties shall utilize the dispute mechanism provided for in Article VI and the Accounting Firm shall decide whether Company has the right to settle (or to cause settlement of) the Tax Contest under this clause (iii)). If neither Offshore nor DeepFlex assumes control of the defense or prosecution, as the case may be, of the portion of any Tax Contest 15-day notice period described in this Section 10.4(b)(i)) within which to (i) elect to represent the first sentence of this paragraph, Offshore Company’s interest in and DeepFlex shall indemnify Company for fees and expenses incurred by Company in connection with Company's defense or prosecution of such portion of such Tax Contest. (c) Company and Offshore shall jointly control (and each party shall bear their own expenses in connection with) any Tax Contest relating to the Merger Transactionsa Pre-Closing Tax Period and (ii) provide written notice to Purchaser that it has made such election; provided, however, that if Caladrius fails to the extent that such Tax Contest could result in Offshore or DeepFlex making a payment provide timely notice to Company hereunder and Offshore or DeepFlex reaffirms in writing Purchaser of its potential indemnification obligation under election pursuant to this Agreement. Company Section 10.4(b)(i), Purchaser shall have the authority sole right to settle represent Company’s interest in and control any such Tax Contest with relating to a Pre-Closing Period without the consent participation or input of Offshore or DeepFlex, which consent shall not be unreasonably withheld. If Offshore withholds consent to settlement of a Tax Contest and such settlement would not have resulted in Offshore and DeepFlex making any payments to Company in excess of payments actually made pursuant to the ultimate resolution of the Tax Contest, Offshore shall indemnify Company for any Taxes owed by Company that would not have been owed had Offshore consented to the settlement. Likewise, Offshore shall have the authority to settle any such Tax Contest with the consent of Company, which consent shall not be unreasonably withheld. If Company withholds consent to settlement of a Tax Contest and such settlement would not have adversely affected Company, the obligations of Offshore and DeepFlex hereunder shall be limited to the amount that would have resulted if Company had consented to the settlementCaladrius. (dii) In Subject to Section 10.5, following the case Closing Date, Purchaser and Company shall control, at their own cost and expense, the conduct of any Tax Contest which relates exclusively to Taxes of members of the Offshore Group or DeepFlex Group for which Offshorenot covered in Section 10.4(b)(i); provided, DeepFlex or the members of the Offshore Group or the DeepFlex Group have no obligation to make a payment to Company under this Agreement, Offshore, DeepFlex or the applicable member(s) of the Offshore Group or the DeepFlex Group shall have exclusive control over the Tax Contest; provided that Company Caladrius shall be allowed to participate (at its own cost and expense) in in, and Purchaser shall not settle or dispose of any such Tax Contest if the resolution of the Tax Contest could result in a Tax Detriment to any member of the Company Group. (e) Offshore will allow TODI and its representatives to participate (at its own expense) in any audits of the Offshore federal consolidated income (or state combined, unitary or consolidated) Tax Returns to the extent such Tax Returns relate to TODI. Offshore will not settle any such audit in a manner which would adversely affect TODI after the TODI Payment Date without the prior written consent of CompanyCaladrius (not to be unreasonably withheld), if the settlement or disposition of such Tax Contest could reasonably be expected to have a material adverse impact on Caladrius, or give rise to any indemnification obligation (and Caladrius has not elected to control).