Common use of Post-Closing Tax Matters Clause in Contracts

Post-Closing Tax Matters. (a) Acquisition General Partner will, from and after the Effective Time, be the successor Tax Matters Partner of the Company (the “TMP”), within the meaning of Section 6231 of the Code, with respect to all Taxable years of the Company and as of the closing assumes the duties of the Managing General Partner, as the current TMP, to the Unitholders. As TMP and subject to the provisions and requirements of the Code, Acquisition General Partner will represent the Company and control the handling of any Tax audit, investigation or assessment against the Company, regardless of the Taxable year to which such audit, investigation or assessment relates. In exercising its duties as TMP, Acquisition General Partner will have the right to employ counsel of its choice at its expense and to control the conduct of such audit, investigation, assessment or proceeding, including settlement or other disposition thereof and to settle the contest of any Tax or agree to an adjustment to any Tax or partnership item. Notwithstanding the preceding sentence, Acquisition General Partner will neither consent nor agree to the settlement of any dispute regarding Taxes for any Taxable period (or portion thereof) ending on or prior to the Merger Date if such settlement would reasonably be expected to have a material adverse impact on the Unitholders without the prior written consent of the Managing General Partner (or any successor person or entity), which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Managing General Partner will prepare and file all income and franchise Tax Returns of the Company due after the Merger Date (taking into account applicable extensions of time for filing) with respect to any Taxable period (or portion thereof) ending on or prior to the Merger Date. In connection with the foregoing, the Managing General Partner will submit drafts of all income and franchise Tax Returns to the Acquisition General Partner no later than twenty days prior to the filing date and will not file such Tax Returns without the prior written consent of the Acquisition General Partner (or any successor person or entity), which consent will not be unreasonably withheld or delayed. (b) The parties acknowledge that pursuant to the Company’s currently effective election under Section 754 of the Code, the tax basis of the Company’s assets will be adjusted pursuant to Sections 743 and 755 of the Code upon the Merger. Acquisition General Partner and the Managing General Partner shall cooperate to prepare, within a reasonable time after the Effective Time, a schedule (the “Allocation Schedule”) allocating the Merger Consideration, the liabilities of the Company and any other applicable amounts among the assets and properties of the Company in accordance with Section 755 and Section 1.755-2T of the Treasury Regulations thereunder which will be consistent with the allocation of the value of assets and properties between the members of Parent. The Allocation Schedule so arrived at shall be used by (i) Acquisition General Partner in determining and reporting the basis of the Company’s assets for federal (and all applicable state) income tax purposes, and (ii) the Managing General Partner in preparing reports to the respective Unitholders enabling them to report their taxable income from the Merger and to comply with Section 1.751-1(a)(3) of the Treasury Regulations (“Partner Reports”). The Managing General Partner shall prepare and provide the Partner Reports to the Acquisition General Partner for approval within thirty days after the Allocation Schedule is finally completed. The Managing General Partner shall not forward the Partner Reports to the Unitholders until approved by the Acquisition General Partner, which approval shall not be unreasonably withheld or delayed. The parties further agree that, in reporting the Merger for federal (and applicable state) income tax purposes, they shall treat any amount of the Escrow Fund released to the Company and then paid to the Unitholders as constituting additional Merger Consideration.

Post-Closing Tax Matters. (a) Acquisition General Partner willSeller shall prepare and file, from or cause to be prepared and after the Effective Timefiled, be the successor (A) all Tax Matters Partner Returns of the Company Target Entities that are required to be filed on or before the Closing Date, (the “TMP”), within the meaning B) all income Tax Returns of Section 6231 of the Code, with respect to all Taxable years of the Company and as of the closing assumes the duties of the Managing General Partner, as the current TMP, to the Unitholders. As TMP and subject to the provisions and requirements of the Code, Acquisition General Partner will represent the Company and control the handling of any ASE (including IRS Form 1065) for Tax audit, investigation or assessment against the Company, regardless of the Taxable year to which such audit, investigation or assessment relates. In exercising its duties as TMP, Acquisition General Partner will have the right to employ counsel of its choice at its expense and to control the conduct of such audit, investigation, assessment or proceeding, including settlement or other disposition thereof and to settle the contest of any Tax or agree to an adjustment to any Tax or partnership item. Notwithstanding the preceding sentence, Acquisition General Partner will neither consent nor agree to the settlement of any dispute regarding Taxes for any Taxable period (or portion thereof) Periods ending on or prior to the Merger ASE Transfer Date if in which ASE had been treated as a partnership for U.S. federal income tax purposes, it being understood that any Covered Taxes with respect to such settlement would reasonably Tax Returns will be expected the responsibility of Seller and (C) all income Tax Returns of each of the Section 338 Companies for any jurisdiction in which such Section 338 Company is treated as a pass-through entity or S corporation) for Tax Periods ending on or prior to the Closing Date, it being understood that any Covered Taxes with respect to such Tax Returns will be the responsibility of Seller. All such Tax Returns shall be prepared in a manner consistent with past practice, except as otherwise required by Law. Seller shall deliver or cause to be delivered to Purchaser any Tax Return described in clause (B) and clause (C) within a reasonable period of time prior to the due date for any such Tax Return so that Purchaser may have an opportunity to review such Tax Return. Purchaser shall prepare or cause to be prepared and file or cause to be filed all other Tax Returns of the Target Entities. Purchaser shall deliver or cause to be delivered to Seller any income Tax Return described in the previous sentence, to the extent it relates to a material adverse impact Pre-Closing Tax Period, within a reasonable period of time prior to the due date for any such Tax Return (after giving effect to any applicable extensions of time for filing) so that Seller may have an opportunity to review such Tax Return. In the event that Purchaser and Seller are unable to agree on the Unitholders reporting of any item on any Tax Return provided for the other Party’s review pursuant to this Section 8.3(a), Purchaser and Seller shall mutually choose an independent public accounting firm to resolve such dispute, and the decision of such firm shall be final. In the event of an impasse over such selection, the independent public accounting firm shall be selected by a single arbitrator appointed pursuant to the AAA Appointment Process. Expenses of such independent public accounting firm shall be born evenly between Purchaser and Seller. After the Closing, Seller shall not, and shall not permit any of their respective Affiliates to, amend any Tax Returns or change any Tax elections or accounting methods with respect to Target Entities without the prior written consent of Purchaser. (b) Any Taxes for Straddle Periods shall be apportioned between Seller and Purchaser in the Managing General Partner manner set forth in Section 8.1(b) hereof. (c) Purchaser and Seller shall cooperate with each other in connection with the filing of any Tax Returns and any audit, litigation or other proceeding with respect to Taxes. Such cooperation shall include the retention and (upon the other Party’s request) the provision of records and information reasonably relevant to any successor person such audit, litigation, or entity)other proceeding and making their respective employees, outside consultants, and advisors available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder at the cost of the requesting Party. Purchaser and Seller agree (i) to retain all books and records with respect to Tax matters pertinent to the Target Entities relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by Purchaser or Seller, any extensions of the statute of limitations) of the respective taxable periods, and to abide by all record retention agreements entered into with any Tax Authority; and (ii) to give the other Party reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other Party so requests, Purchaser or Seller, as the case may be, shall allow the other Party to take possession of such books and records. (d) Purchaser agrees to give prompt notice to Seller of any Taxes or the assertion of any claim, or the commencement of any suit, action or proceeding (a “Tax Proceeding”) in respect of which indemnity may be sought under Section 8.1, provided that Purchaser’s failure to provide such notice to Seller shall not limit Purchaser’s rights under this Article VIII except to the extent Seller are materially prejudiced by such failure. Seller agrees to give prompt notice to Purchaser upon the receipt of any written notice by Seller of any pending or threatened audits or proceedings or other Actions relating to Taxes of the Target Entities. Seller shall have the right to control any Tax Proceeding relating to a Tax Return that was prepared and filed by Seller pursuant to this Section 8.3. All other Tax Proceedings with respect to the Target Entities shall be controlled by Purchaser. Purchaser and Seller shall cooperate in the conduct of any such Tax Proceeding, (ii) the party not controlling such Tax Proceeding shall have the right (but not the obligation) to participate in such Tax Proceeding at their own expense, (iii) the party controlling such Tax Proceeding shall keep the other party reasonably informed of material developments concerning such Tax Proceeding and (iv) the party controlling such Tax Proceeding shall not settle such Tax Proceeding without the written consent of the other party, which consent will shall not unreasonably be unreasonably withheld withheld, conditioned or delayed. Notwithstanding the foregoing, Seller’s rights pursuant to this Section 8.3(d) shall only apply with respect to any Tax Proceeding in respect of which indemnity may be sought from Seller pursuant to Section 8.1. (e) Seller shall designate a Person as the Managing General Partner will prepare and file all income and franchise Tax Returns “partnership representative” of the Company due after ASE, in accordance with Section 6223 of the Merger Date Code and any similar provision under any state or local tax Laws (taking into account applicable extensions of time for filingthe “Partnership Representative”) with respect to any Taxable period (taxable periods beginning on or portion thereof) after January 1, 2018 and ending on or prior to the Merger before ASE Transfer Date. In connection with Seller shall cause the foregoing, Partnership Representative to make the Managing General Partner will submit drafts of all income and franchise Tax Returns to the Acquisition General Partner no later than twenty days prior to the filing date and will not file such Tax Returns without the prior written consent of the Acquisition General Partner (or any successor person or entity), which consent will not be unreasonably withheld or delayed. (b) The parties acknowledge that pursuant to the Company’s currently effective election under provided for in Section 754 of the Code, the tax basis of the Company’s assets will be adjusted pursuant to Sections 743 and 755 6226 of the Code upon or any similar provision of any state or local tax Laws with respect to any imputed underpayment determined in connection with any Tax Proceeding in respect of ASE for taxable periods of ASE beginning after December 31, 2017 and ending on or before the MergerClosing Date. Acquisition General Partner and No election shall be made to have the Managing General Partner shall cooperate to prepare, within a reasonable time after the Effective Time, a schedule (the “Allocation Schedule”) allocating the Merger Consideration, the liabilities provisions of the Company and Bipartisan Budget Act of 2015 apply to any other applicable amounts among the assets and properties taxable period of the Company in accordance with Section 755 and Section 1.755-2T of the Treasury Regulations thereunder which will be consistent with the allocation of the value of assets and properties between the members of Parent. The Allocation Schedule so arrived at shall be used by (i) Acquisition General Partner in determining and reporting the basis of the Company’s assets for federal (and all applicable state) income tax purposesASE beginning before January 1, and (ii) the Managing General Partner in preparing reports to the respective Unitholders enabling them to report their taxable income from the Merger and to comply with Section 1.751-1(a)(3) of the Treasury Regulations (“Partner Reports”). The Managing General Partner shall prepare and provide the Partner Reports to the Acquisition General Partner for approval within thirty days after the Allocation Schedule is finally completed. The Managing General Partner shall not forward the Partner Reports to the Unitholders until approved by the Acquisition General Partner, which approval shall not be unreasonably withheld or delayed. The parties further agree that, in reporting the Merger for federal (and applicable state) income tax purposes, they shall treat any amount of the Escrow Fund released to the Company and then paid to the Unitholders as constituting additional Merger Consideration2018.

Post-Closing Tax Matters. (a) Acquisition General Partner will, from From and after the Effective TimeClosing, be the successor each of Buyer and Seller (a “Tax Matters Partner of the Company (the “TMPIndemnified Person”), shall notify the other party in writing within thirty (30) days of receipt by the meaning Tax Indemnified Person of Section 6231 written notice of any pending or threatened audits, adjustments, claims, examinations, assessments or other proceedings (a “Tax Audit”) which may affect the Code, with respect liability for Taxes of such other party under this Agreement. If the Tax Indemnified Person fails to all Taxable years of the Company and as of the closing assumes the duties of the Managing General Partner, as the current TMP, give such timely notice to the Unitholders. As TMP and subject other party, it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Audit to the provisions extent that such failure to give notice materially and requirements of adversely affects the Code, Acquisition General Partner will represent the Company and control the handling of any Tax audit, investigation or assessment against the Company, regardless of the Taxable year to which such audit, investigation or assessment relates. In exercising its duties as TMP, Acquisition General Partner will have the other party’s right to employ counsel of its choice at its expense and to control participate in or meaningfully defend the conduct of such audit, investigation, assessment or proceeding, including settlement or other disposition thereof and to settle the contest of any Tax or agree to an adjustment to any Tax or partnership item. Notwithstanding the preceding sentence, Acquisition General Partner will neither consent nor agree to the settlement of any dispute regarding Taxes for any Taxable period (or portion thereof) ending on or prior to the Merger Date if such settlement would reasonably be expected to have a material adverse impact on the Unitholders without the prior written consent of the Managing General Partner (or any successor person or entity), which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Managing General Partner will prepare and file all income and franchise Tax Returns of the Company due after the Merger Date (taking into account applicable extensions of time for filing) with respect to any Taxable period (or portion thereof) ending on or prior to the Merger Date. In connection with the foregoing, the Managing General Partner will submit drafts of all income and franchise Tax Returns to the Acquisition General Partner no later than twenty days prior to the filing date and will not file such Tax Returns without the prior written consent of the Acquisition General Partner (or any successor person or entity), which consent will not be unreasonably withheld or delayedAudit. (b) The parties acknowledge If a Tax Audit relates to Taxes for which only Seller would be liable to indemnify Buyer under this Agreement, Seller shall have the option, at its expense, to control the defense and settlement of such Tax Audit. If Seller does not elect to control the defense and settlement of such Tax Audit by giving written notice to Buyer within thirty (30) days of the receipt of the first notice of such audit (and failure to give such timely notice shall constitute a waiver of Seller’s right to elect to control and defend the audit), Buyer may, at Buyer’s expense, control the defense and settlement of such Tax Audit, provided that pursuant Seller shall pay any Tax for which it is otherwise liable under Section 7.1. If such Tax Audit relates solely to Taxes for which only Buyer would be liable under this Agreement, Buyer shall, at its expense, control the defense and settlement of such Tax Audit to the Company’s currently effective election extent that such Tax Audit relates to Taxes for which Buyer is liable to indemnify Seller under Section 754 7.1. (c) If a Tax Audit relates to Taxes for which both Seller and Buyer could be liable under this Agreement, to the extent practicable, the items of income, gain, loss, deduction and credit or other item required to be reported on or otherwise reported on the applicable Tax Return (“Tax Items”) with respect to such Tax Audit will be distinguished and each party will have the option to control the defense and settlement of those Taxes for which it is so liable. If such Tax Audit relates to a Straddle Period and any Tax Item cannot be identified as being a liability of only one party or cannot be separated from a Tax Item for which the other party is liable, Buyer, at its expense, shall have the option to control the defense and settlement of the Code, the tax basis of the Company’s assets will be adjusted pursuant to Sections 743 and 755 of the Code upon the Merger. Acquisition General Partner and the Managing General Partner shall cooperate to prepare, within a reasonable time after the Effective Time, a schedule (the “Allocation Schedule”) allocating the Merger Consideration, the liabilities of the Company and any other applicable amounts among the assets and properties of the Company in accordance with Section 755 and Section 1.755-2T of the Treasury Regulations thereunder which will be consistent with the allocation of the value of assets and properties between the members of Parent. The Allocation Schedule so arrived at shall be used by (i) Acquisition General Partner in determining and reporting the basis of the Company’s assets for federal (and all applicable state) income tax purposes, and (ii) the Managing General Partner in preparing reports to the respective Unitholders enabling them to report their taxable income from the Merger and to comply with Section 1.751-1(a)(3) of the Treasury Regulations (“Partner Reports”). The Managing General Partner shall prepare and provide the Partner Reports to the Acquisition General Partner for approval within thirty days after the Allocation Schedule is finally completed. The Managing General Partner shall not forward the Partner Reports to the Unitholders until approved by the Acquisition General Partner, which approval shall not be unreasonably withheld or delayed. The parties further agree that, in reporting the Merger for federal (and applicable state) income tax purposes, they shall treat any amount of the Escrow Fund released to the Company and then paid to the Unitholders as constituting additional Merger ConsiderationTax Audit.

Post-Closing Tax Matters. (a) Acquisition General Partner willAcquiror shall, from at its own expense, prepare and after the Effective Timefile, or cause to be the successor Tax Matters Partner prepared and filed, all Returns (including in Acquiror’s discretion any amended Returns as need to be filed) of the Company (the “TMP”), within the meaning of Section 6231 of the Code, with respect to for all Taxable years of the Company and as of the closing assumes the duties of the Managing General Partner, as the current TMP, to the Unitholders. As TMP and subject to the provisions and requirements of the Code, Acquisition General Partner will represent the Company and control the handling of any Tax audit, investigation or assessment against the Company, regardless of the Taxable year to which such audit, investigation or assessment relates. In exercising its duties as TMP, Acquisition General Partner will have the right to employ counsel of its choice at its expense and to control the conduct of such audit, investigation, assessment or proceeding, including settlement or other disposition thereof and to settle the contest of any Tax or agree to an adjustment to any Tax or partnership item. Notwithstanding the preceding sentence, Acquisition General Partner will neither consent nor agree to the settlement of any dispute regarding Taxes for any Taxable period (or portion thereof) taxable periods ending on or prior to the Merger Date if such settlement would reasonably be expected to Effective Time that have a material adverse impact on the Unitholders without the prior written consent not been filed as of the Managing General Partner Effective Time and for all taxable periods that include the Effective Time (or any successor person or entitythe “Overlap Returns”), which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Managing General Partner will prepare and file all income and franchise Tax Returns of the Company due after the Merger Date (taking into account applicable extensions of time for filing) with respect to any Taxable period (or portion thereof) ending on or prior to the Merger Date. In connection with the foregoing, the Managing General Partner will submit drafts of all income and franchise Tax Returns to the Acquisition General Partner no later than twenty Thirty days prior to the due date for any Overlap Return or the filing date and of any amended Overlap Return, Acquiror will not file provide to the Representative, for his review, a copy of such Tax Returns without the prior written consent of the Acquisition General Partner Overlap Return (or any successor person or entitywhich shall be prepared by a national accounting firm), which consent will not be unreasonably withheld or delayedand Acquiror shall incorporate thereon reasonable comments consistent with applicable tax laws timely provided in writing by the Representative. (b) The parties acknowledge that Acquiror will own all outstanding stock of Auto Merger Sub immediately after the Merger and Acquiror has no current plan or intention to and will not cause or permit Auto Merger Sub to issue additional equity interests to any person or entity (other than Acquiror) in connection with the Merger. Immediately after the Merger, Auto Merger Sub will not have any outstanding warrants, options, convertible securities or any other type of right pursuant to which any person could acquire equity interests in Auto Merger Sub and Acquiror will not cause or permit Auto Merger Sub to issue any such rights in connection with the Merger. (c) Assuming the current business carried on by the Company is the “historic business,” following the Merger, Auto Merger Sub will continue the Company’s currently effective election under Section 754 of the Code, the tax basis historic business or use a significant portion of the Company’s historic business assets in a business within the meaning of Treasury Regulation Section 1.368-1(d). (d) In connection with the Merger, Acquiror will not redeem or reacquire any shares of the Acquiror Common Stock issued in the First Merger. In addition, in connection with the Merger, no person related to Acquiror (within the meaning of Treasury Regulation Section 1.368-1(e)(3)) and no person acting as an intermediary for Acquiror or such a related person will acquire any of the Acquiror Common Stock issued in the First Merger. Acquiror may repurchase Unvested Acquiror Shares upon the termination of employment or services pursuant to repurchase options, vesting schedules or other conditions assigned to Acquiror in connection with the Merger. (e) Acquiror will treat all of the consideration paid to the Company Stockholders pursuant to this Agreement as consideration paid to such holders in exchange for Company Capital Stock and will not treat any portion of such consideration as compensation for services; provided, however, for any Unvested Company Shares for which a Company Stockholder has not timely filed a valid §83(b) election under the Code, Acquiror may treat consideration for Unvested Company Shares as paid in connection with services under §83 of the Code when the Unvested Acquiror Shares received in exchange therefor vest. (f) At least 90% of the fair market value of the net assets and at least 70% of the fair market value of the gross assets held by the Company immediately after the First Merger will be transferred to Auto Merger Sub in the Second Merger. For purposes of this representation, the following assets will be adjusted pursuant to Sections 743 and 755 of treated as property held by the Code upon the Merger. Acquisition General Partner and the Managing General Partner shall cooperate to prepare, within a reasonable time Company immediately after the Effective TimeFirst Merger, a schedule (but not transferred to Auto Merger Sub in the “Allocation Schedule”) allocating the Merger Consideration, the liabilities of the Company and any other applicable amounts among the assets and properties of the Company in accordance with Section 755 and Section 1.755-2T of the Treasury Regulations thereunder which will be consistent with the allocation of the value of assets and properties between the members of Parent. The Allocation Schedule so arrived at shall be used by Second Merger: (i) Acquisition General Partner assets used by the Company or Auto Merger Sub to pay stockholders in determining and reporting lieu of fractional shares of Acquiror Common Stock or other expenses or liabilities incurred in connection with the basis of the Company’s assets for federal (and all applicable state) income tax purposes, Merger; and (ii) assets used to make distributions, redemptions or other payments in respect of Company Capital Stock or rights to acquire such stock (including payments treated as such for tax purposes) that are made after the Managing General Partner First Merger and in preparing reports to the respective Unitholders enabling them to report their taxable income from contemplation of the Merger or that are related thereto. (g) Following the Merger, Acquiror will comply, and will cause Auto Merger Sub to comply comply, with the record-keeping and information filing requirements of Treasury Regulation Section 1.7511.368-1(a)(33. Acquiror, Car Merger Sub and Auto Merger Sub will not take any position on any federal, state, or local income or franchise tax return, or take any other tax reporting position, that is inconsistent with the treatment of the Merger as a reorganization within the meaning of Section 368(a) of the Treasury Regulations (“Partner Reports”). The Managing General Partner shall prepare and provide Code or any of the Partner Reports foregoing representations, unless otherwise required to do so by Applicable Law or if due to the Acquisition General Partner for approval within thirty days after the Allocation Schedule is finally completed. The Managing General Partner shall not forward the Partner Reports to the Unitholders until approved by the Acquisition General Partner, which approval shall not be unreasonably withheld or delayed. The parties further agree that, operation of Section 3.3 Acquiror distributes cash in reporting connection with the Merger for federal (and applicable state) income tax purposes, they shall treat any amount of that causes the Escrow Fund released Merger to the Company and then paid fail to the Unitholders so qualify as constituting additional Merger Considerationa reorganization.

Post-Closing Tax Matters. (a) Acquisition General Partner willFor the one year period immediately following the closing, from Buyer agrees to provide to Seller such financial and after other information as may reasonably be requested by Seller in order for Seller to properly and accurately complete and file, with the Effective Timeappropriate United States, state and local governmental agencies, all tax returns and reports required to be the successor Tax Matters Partner of filed for the Company (the “TMP”), within the meaning of Section 6231 of the Code, with respect to all Taxable years of the Company and as of the closing assumes the duties of the Managing General Partner, as the current TMP, to the Unitholders. As TMP and subject to the provisions and requirements of the Code, Acquisition General Partner will represent the Company and control the handling of any Tax audit, investigation or assessment against the Company, regardless of the Taxable year to which such audit, investigation or assessment relates. In exercising its duties as TMP, Acquisition General Partner will have the right to employ counsel of its choice at its expense and to control the conduct of such audit, investigation, assessment or proceeding, including settlement or other disposition thereof and to settle the contest of any Tax or agree to an adjustment to any Tax or partnership item. Notwithstanding the preceding sentence, Acquisition General Partner will neither consent nor agree to the settlement of any dispute regarding Taxes for any Taxable period (or portion thereof) tax periods ending on or prior to the Merger Date if such settlement would reasonably be expected to have a material adverse impact on the Unitholders without the prior written consent effective date of the Managing General Partner (or any successor person or entity), which consent will not be unreasonably withheld or delayedclosing. Notwithstanding the foregoing, the Managing General Partner Buyer agrees to provide such information within 45 days of Seller's request. Seller will prepare and file all income required tax returns and franchise Tax Returns reports for the Company for periods up to and including the effective date of the Company due after the Merger Date (taking into account applicable extensions of time for filing) with respect to any Taxable period (or portion thereof) ending on or prior to the Merger Dateclosing. In connection with the foregoing, the Managing General Partner will submit drafts of all income and franchise Tax Returns to the Acquisition General Partner no later than twenty days prior to the filing date and will not file such Tax Returns without the prior written consent of the Acquisition General Partner (or any successor person or entity), which consent will not be unreasonably withheld or delayed. (b) The parties acknowledge that pursuant to the Company’s currently effective election under Section 754 of the Code, the tax basis of the Company’s assets Seller will be adjusted pursuant to Sections 743 and 755 of the Code upon the Merger. Acquisition General Partner and the Managing General Partner shall cooperate to prepare, within a reasonable time after the Effective Time, a schedule (the “Allocation Schedule”) allocating the Merger Consideration, the responsible for all tax liabilities of the Company for periods up to and any other applicable amounts among including the assets and properties effective date of the closing. Buyer will be responsible for all tax liabilities of the Company in accordance with Section 755 and Section 1.755-2T for periods subsequent to the effective date of the Treasury Regulations thereunder which closing. To the extent that the Company or Buyer receives a refund of taxes related to periods prior to the effective date of the closing, Buyer or the Company will remit such tax refund and related interest, if any, to Seller within 15 days of Buyer's or the Company's receipt. For a period of seven (7) years immediately following the closing, Buyer agrees to provide to Seller such financial and other information with respect to pre-closing periods as may reasonably be consistent requested by Seller in order for Seller to adequately and accurately respond to any inquiries, audits or examinations of pre-closing period tax returns and reports by any United States or state and local governmental agencies. Buyer agrees to provide such information within 45 days of Seller's request. In order to appropriately apportion any taxes relating to a period that includes (but that would not, but for this section, close on) the closing date, the parties hereto will, to the extent permitted by applicable law, elect with the allocation relevant taxing authority to treat for all purposes the closing date as the last day of a taxable period of the value of assets Company, and properties between the members of Parent. The Allocation Schedule so arrived at such period shall be used by treated as a short period and a pre-closing period for purposes of this Agreement. In any case where applicable law does not permit the Company to treat the closing date as the last day of a short period, then for purposes of this Agreement, the portion of each such tax that is attributable to the operations of the Company for such interim period shall be (i) Acquisition General Partner in determining the case of a tax that is not based on income or gross receipts, the total amount of such tax for the period in question multiplied by a fraction, the numerator of which is the number of days in the interim period, and reporting the basis denominator of which is the Company’s assets for federal (and all applicable state) income tax purposestotal number of days in such period, and (ii) in the Managing General Partner in preparing reports case of a tax that is based on income or gross receipts, the tax that would be due with respect to the respective Unitholders enabling them to report their taxable income from the Merger and to comply with Section 1.751-1(a)(3) of the Treasury Regulations (“Partner Reports”). The Managing General Partner shall prepare and provide the Partner Reports to the Acquisition General Partner for approval within thirty days after the Allocation Schedule is finally completed. The Managing General Partner shall not forward the Partner Reports to the Unitholders until approved by the Acquisition General Partnerinterim period, which approval shall not be unreasonably withheld or delayed. The parties further agree that, in reporting the Merger for federal (and applicable state) income tax purposes, they shall treat any amount of the Escrow Fund released to the Company and then paid to the Unitholders as constituting additional Merger Considerationif such interim period were a short period.

Post-Closing Tax Matters. After Closing, Buyer and Seller agree and shall, as applicable: (a) Acquisition General Partner will, from reasonably cooperate and after assist the Effective Time, be the successor other (1) in preparing any Tax Matters Partner of the Company (the “TMP”), within the meaning of Section 6231 of the Code, with respect to all Taxable years of the Company and as of the closing assumes the duties of the Managing General Partner, as the current TMP, Returns regarding any Tax relating to the Unitholders. As TMP Assets, or the Transaction, and subject (2) in qualifying for any exemption or reduction in Tax that may be available in accordance with applicable Law; (b) reasonably cooperate in preparing for any audits, examinations, or other Tax proceedings by, or disputes with, taxing authorities regarding any Tax relating to the provisions Assets or the Transaction; (c) make available to the other, and requirements of to any taxing authority as reasonably requested, any information, records, and documents relating to a Tax incurred or imposed in connection with the Code, Acquisition General Partner will represent Assets or the Company and control Transaction; (d) provide timely notice to the handling other in writing of any pending or threatened Tax audit, investigation examination, or assessment against the Company, regardless of the Taxable year to which such audit, investigation or assessment relates. In exercising its duties as TMP, Acquisition General Partner will have the right to employ counsel of its choice at its expense and to control the conduct of such audit, investigation, assessment or proceeding, including settlement or other disposition thereof and to settle the contest of any Tax or agree to an adjustment to any Tax or partnership item. Notwithstanding the preceding sentence, Acquisition General Partner will neither consent nor agree to the settlement of any dispute regarding Taxes for any Taxable period (or portion thereof) ending on or prior to the Merger Date if such settlement would that could reasonably be expected to have affect the other’s Tax liability under applicable Law or this Agreement (a material adverse impact on “Tax Controversy”), and to promptly furnish the Unitholders other with copies of all correspondence with respect to any Tax Controversy; (e) allow the other to participate, at its own expense, in any Tax Controversy, and not settle any Tax Controversy without the prior written consent of the Managing General Partner (or any successor person or entity)other, which consent will may not be unreasonably withheld withheld, conditioned, or delayed. Notwithstanding ; (f) Seller shall file or cause to be filed a final year, effective as of the foregoingClosing Date, the Managing General Partner will prepare and file all U.S. federal income and franchise Tax Returns of the Company due after the Merger Date (taking into account applicable extensions of time for filing) with respect to any Taxable period Tax Partnerships that do not survive the Closing in accordance with this Article IX; and (or portion thereofg) ending on or prior A Push-Out Election shall be made with respect to the Merger Date. In connection any Pre-Closing Tax Period with the foregoing, the Managing General Partner will submit drafts of all income and franchise respect to any Tax Returns to the Acquisition General Partner no later than twenty days prior to the filing date and will not file such Tax Returns without the prior written consent of the Acquisition General Partner (or any successor person or entity), which consent will not be unreasonably withheld or delayedPartnership. (bh) The parties acknowledge Seller shall have the exclusive control, at its sole expense, of any U.S. federal income Tax Controversy or other audit relating to a Pre-Closing Tax Period with respect to any Tax Partnership that pursuant does not survive the Closing; provided, however, Seller agrees to the Company’s currently effective election under Section 754 promptly notify Buyer of the Code, the tax basis commencement of any such Tax Controversy and thereafter keep Buyer reasonably informed of the Company’s assets will be adjusted pursuant to Sections 743 status and 755 details of the Code upon the Merger. Acquisition General Partner and the Managing General Partner shall cooperate to prepare, within a reasonable time after the Effective Time, a schedule (the “Allocation Schedule”) allocating the Merger Consideration, the liabilities of the Company and any other applicable amounts among the assets and properties of the Company in accordance with Section 755 and Section 1.755-2T of the Treasury Regulations thereunder which will be consistent with the allocation of the value of assets and properties between the members of Parent. The Allocation Schedule so arrived at shall be used by (i) Acquisition General Partner in determining and reporting the basis of the Company’s assets for federal (and all applicable state) income tax purposes, and (ii) the Managing General Partner in preparing reports to the respective Unitholders enabling them to report their taxable income from the Merger and to comply with Section 1.751-1(a)(3) of the Treasury Regulations (“Partner Reports”). The Managing General Partner shall prepare and provide the Partner Reports to the Acquisition General Partner for approval within thirty days after the Allocation Schedule is finally completed. The Managing General Partner shall not forward the Partner Reports to the Unitholders until approved by the Acquisition General Partner, which approval shall not be unreasonably withheld or delayed. The parties further agree that, in reporting the Merger for federal (and applicable state) income tax purposes, they shall treat any amount of the Escrow Fund released to the Company and then paid to the Unitholders as constituting additional Merger Considerationsuch Tax Controversy.

Post-Closing Tax Matters. Buyer acknowledges and agrees that the Stockholder Representative shall have the exclusive power and authority (ai) Acquisition General Partner willat the expense of the Company, from and after to cause the Effective Time, be income tax returns for the successor Tax Matters Partner last separate taxable year of the Company (the “TMP”), within the meaning of Section 6231 ending as a result of the Code, consummation of the transactions contemplated by this Agreement and the immediate liquidation of the Surviving Corporation through merger to be prepared and filed in accordance with respect to all Taxable years historic practices and procedures of the Company and as applicable law (provided, however, the Stockholder Representative shall follow the instructions of Buyer with respect to determining and reporting the treatment and effects of such liquidation through merger, which shall be solely the responsibility of the closing assumes the duties of the Managing General PartnerBuyer), as the current TMP, to the Unitholders. As TMP and subject to the provisions and requirements of the Code, Acquisition General Partner will represent the Company and control the handling of any Tax audit, investigation or assessment against the Company, regardless of the Taxable year to which such audit, investigation or assessment relates. In exercising its duties as TMP, Acquisition General Partner will have the right to employ counsel of its choice at its expense and (ii) to control the conduct of the Surviving Corporation in respect of any tax audit or examination and -35- 42 any administrative appeal or litigation relating thereto, to the extent it relates to any Taxes required to be paid by the Company for periods ending on or before the Closing Date if such auditTaxes are payable (the costs of any such audit or examination shall be borne by the Surviving Corporation until the issuance of a notice of deficiency, investigationwhereas the costs of any administrative appeal or litigation after the issuance of a notice of deficiency shall be borne by the Company Stockholders), assessment or proceeding, including settlement or other disposition thereof (iii) subject to the provisions of this Section to determine whether and to settle what extent to amend any Tax return filed before the contest Closing Date or which is described in the immediately preceding clause (i), and (iv) whether and to what extent the Surviving Corporation shall extend or waive any statute of limitations for the assessment of any Tax required to be paid by the Company for periods ending on or agree before the Closing Date if such Tax is payable. Buyer shall have the right to an adjustment to participate in any Tax such amendment, extension of limitation, tax audit, examination, appeal or partnership item. Notwithstanding litigation (collectively, a "tax proceeding") at Buyer's sole expense, and, notwithstanding the immediately preceding sentence, Acquisition General Partner will neither consent nor agree to jointly control with the Stockholder Representative any such tax proceeding if (i) the amount claimed by the taxing authority in a notice of deficiency would result in a liability to the settlement Surviving Corporation or its Subsidiaries that exceeds the amount of Damages for which the Company Stockholders are liable pursuant to Article IX or (ii) the proposed tax proceeding would reasonably result in a material tax or expense to any dispute regarding Taxes for Controlled Entity. In no event shall the Stockholder Representative settle any Taxable period (or portion thereof) ending on or prior to the Merger Date such tax proceeding without Buyer's consent if such settlement would reasonably be expected to have a material adverse impact on materially adversely affect the Unitholders without the prior written consent Surviving Corporation or any of the Managing General Partner its subsidiaries (or a Buyer Affiliate that is a successor in interest to the Surviving Corporation or any successor person or entity), which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Managing General Partner will prepare and file all income and franchise Tax Returns of the Company due after the Merger Date (taking into account applicable extensions of time for filingits subsidiaries) with respect to any Taxable period (after the Closing or portion thereof) ending result in any material liability on or prior to the Merger Date. In connection with the foregoing, the Managing General Partner will submit drafts of all income and franchise Tax Returns to the Acquisition General Partner no later than twenty days prior to the filing date and will not file such Tax Returns without the prior written consent part of the Acquisition General Partner (Surviving Corporation or any such successor person in interest which is not required to be paid by the Company Stockholders pursuant to Section 9.2 of this Agreement or entity), which consent will not be unreasonably withheld or delayed. (b) The parties acknowledge that pursuant to the Company’s currently effective election under Escrow Agreement or (ii) any Controlled Entity or a Buyer Affiliate that is the successor in interest of such Controlled Entity. For purposes of this Section 754 6.8, a material effect shall be deemed to be an expense, charge, loss or adverse change in an amount in excess of the Code, amount in the tax basis Escrow Fund as of the Company’s assets will be adjusted pursuant date of determination of such expense, charge, loss or adverse change. The Buyer shall have the right to Sections 743 and 755 file amended income tax returns for the Company or its Subsidiaries for any period, provided that the result of such amended return would not affect the liability of the Code upon the Merger. Acquisition General Partner and the Managing General Partner shall cooperate to prepare, within a reasonable time after the Effective Time, a schedule (the “Allocation Schedule”) allocating the Merger Consideration, the liabilities of the Company and any other applicable amounts among the assets and properties of the Company in accordance with Section 755 and Section 1.755-2T of the Treasury Regulations thereunder which will be consistent with the allocation of the value of assets and properties between the members of Parent. The Allocation Schedule so arrived at shall be used by Stockholders (i) Acquisition General Partner in determining and reporting the basis for Damages hereunder or for any other damages, costs, expenses or obligations of the Company’s assets for federal (and all applicable state) income tax purposes, and any nature or (ii) for income taxes or other Taxes for any of the Managing General Partner Controlled Entities, in preparing reports which event the Stockholder Representative and the Buyer (or a Buyer Affiliate that is a successor in interest to the respective Unitholders enabling them Company) or any of its Subsidiaries must consent in writing to report their taxable income from and Stockholder Representative shall jointly control with the Merger and to comply with Section 1.751-1(a)(3) of the Treasury Regulations Buyer (“Partner Reports”). The Managing General Partner shall prepare and provide the Partner Reports to the Acquisition General Partner for approval within thirty days after the Allocation Schedule is finally completed. The Managing General Partner shall not forward the Partner Reports to the Unitholders until approved by the Acquisition General Partner, which approval shall not be unreasonably withheld or delayed. The parties further agree that, its Affiliate successor in reporting the Merger for federal (and applicable state) income tax purposes, they shall treat any amount of the Escrow Fund released interest to the Company and then paid to its Subsidiaries) the Unitholders as constituting additional Merger Considerationfiling of any such amended income tax return and all matters relating thereto.

Post-Closing Tax Matters. (ai) Acquisition General Partner will, from Seller will be responsible for the preparation and after the Effective Time, be the successor filing of all Tax Matters Partner of the Company (the “TMP”), within the meaning of Section 6231 of the Code, with respect to Returns for all Taxable years of the Company and as of the closing assumes the duties of the Managing General Partner, as the current TMP, to the Unitholders. As TMP and subject to the provisions and requirements of the Code, Acquisition General Partner will represent the Company and control the handling of any Tax audit, investigation or assessment against the Company, regardless of the Taxable year to which such audit, investigation or assessment relates. In exercising its duties as TMP, Acquisition General Partner will have the right to employ counsel of its choice at its expense and to control the conduct of such audit, investigation, assessment or proceeding, including settlement or other disposition thereof and to settle the contest of any Tax or agree to an adjustment to any Tax or partnership item. Notwithstanding the preceding sentence, Acquisition General Partner will neither consent nor agree to the settlement of any dispute regarding Taxes for any Taxable period (or portion thereof) periods ending on or prior to the Merger Closing Date if such settlement would reasonably be expected as to have a material adverse impact on the Unitholders without the prior written consent of the Managing General Partner (or any successor person or entity), which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Managing General Partner will prepare and file all income and franchise Tax Returns of the Company are due after the Merger Closing Date (taking into account applicable extensions including the consolidated, unitary, and combined Tax Returns for Seller which include the operations of time the Business for filing) any period ending on or before the Closing Date). Seller will make all payments required with respect to any Taxable such Tax Return; provided, however, that Buyer will indemnify Seller pursuant to Article IX for any such Taxes that are Assumed Liabilities. For the avoidance of doubt, this Section 6.3(h)(i) shall not apply to Aether European Holdings and other Acquired Aether Entities. (ii) Buyer will be responsible for the preparation and filing of all Tax Returns for the Business for all periods ending after the Closing Date as to which Tax Returns are due after the Closing Date including Tax Returns for the Straddle Period. Buyer shall permit Seller to review and comment on each such Tax Return described in the preceding sentence prior to filing. Buyer will make all payments required with respect to any such Tax Return; provided, however, that Seller will indemnify the Buyer to the extent any payment the Buyer is making is a Tax attributable to a taxable period ending on or before the Closing Date based on the principles in Section 9.1(c), except to the extent that such Taxes are Assumed Liabilities. For the avoidance of doubt, this Section 6.3(h)(ii) shall not apply to Aether European Holdings and other Acquired Aether Entities: (or portion thereofiii) With respect to Aether European Holdings and all other Acquired Aether Entities: (A) Seller will be responsible for the preparation and filing of all Tax Returns for all periods ending on or prior to the Merger Closing Date as to which Tax Returns are due after the Closing Date. In connection Seller will make all payments required with respect to any such Tax Return. (B) Buyer will be responsible for the foregoing, the Managing General Partner will submit drafts preparation and filing of all income and franchise Tax Returns for all periods ending after the Closing Date as to which Tax Returns are due after the Closing Date including Tax Returns for the Straddle Period. Buyer shall permit Seller to review and comment on each such Tax Return described in the preceding sentence prior to filing. Buyer will make all payments required with respect to any such Tax Return and Seller shall not be liable for any Taxes with respect to such Tax Returns, except as otherwise provided in Article IX. (C) Except to the Acquisition General Partner no later than twenty days prior extent required by Applicable Laws, Buyer shall not permit Aether European Holdings and any other Acquired Aether Entity to take any action after the Closing Date which could increase the Seller's Liability for Taxes (including any Liability of the Seller to indemnify the Buyer for Taxes pursuant to this Agreement). (D) Except to the filing date and will not file such Tax Returns extent required by Applicable Laws, Buyer shall not, without the prior written consent of the Acquisition General Partner Seller, amend any Tax Return filed by, or with respect to, Aether European Holdings and any other Acquired Aether Entity for any taxable period, or portion thereof, beginning before the Closing Date. (iv) This Section 6.3(h)(iv) shall apply to both the Purchased Assets and to Aether European Holdings and other Acquired Aether Entities. Each Party shall, at its own expense, control any tax audit or examination by any successor person Governmental Authority, and have the right to initiate any claim for refund or entity)amended return, and contest, resolve and defend against any assessment, notice of deficiency or other adjustment or proposed adjustment of Taxes ("PROCEEDINGS") for any taxable period for which that Party is charged with payment or indemnification responsibility under Article IX. Each Party shall promptly forward to the other Party all written notifications and other written communications, including (if available) the original envelope showing any postmark, from any Governmental Authority received by such Party relating to any Liability for Taxes for any taxable period for which such other Party is charged with payment or indemnification responsibility under Article IX. Each Indemnifying Party shall promptly notify, and consult with, each Indemnified Party as to any action it proposes to take with respect to any Liability for Taxes for which it is required to indemnify the Indemnified Party. The Indemnified Party shall not enter into any closing agreement or final settlement with any Governmental Authority with respect to any such Tax Liability without the written consent of the Indemnifying Party, which consent will not be unreasonably withheld or delayed. (b) The parties acknowledge that pursuant to the Company’s currently effective election under Section 754 of the Code, the tax basis of the Company’s assets will be adjusted pursuant to Sections 743 and 755 of the Code upon the Merger. Acquisition General Partner and the Managing General Partner shall cooperate to prepare, within a reasonable time after the Effective Time, a schedule (the “Allocation Schedule”) allocating the Merger Consideration, the liabilities of the Company and any other applicable amounts among the assets and properties of the Company in accordance with Section 755 and Section 1.755-2T of the Treasury Regulations thereunder which will be consistent with the allocation of the value of assets and properties between the members of Parent. The Allocation Schedule so arrived at shall be used by (i) Acquisition General Partner in determining and reporting the basis of the Company’s assets for federal (and all applicable state) income tax purposes, and (ii) the Managing General Partner in preparing reports to the respective Unitholders enabling them to report their taxable income from the Merger and to comply with Section 1.751-1(a)(3) of the Treasury Regulations (“Partner Reports”). The Managing General Partner shall prepare and provide the Partner Reports to the Acquisition General Partner for approval within thirty days after the Allocation Schedule is finally completed. The Managing General Partner shall not forward the Partner Reports to the Unitholders until approved by the Acquisition General Partner, which approval shall not be unreasonably withheld withheld. In the case of any proceedings relating to any Straddle Period, the Parties shall jointly control such proceedings and shall cooperate with each other as to the conduct of such proceedings. Each Party shall, at the expense of the requesting Party, execute or delayedcause to be executed any powers of attorney or other documents reasonably requested by such requesting Party to enable it to take any and all actions such Party reasonably requests with respect to any proceedings which the requesting Party controls. The parties further agree that, in reporting failure by a Party to provide timely notice under this subsection shall relieve the Merger for federal (and applicable state) income tax purposes, they shall treat any amount of the Escrow Fund released other Party from its indemnification obligations with respect to the Company and then paid subject matter of any notification not timely forwarded, to the Unitholders as constituting additional Merger Considerationextent the other Party has suffered a loss or other economic detriment because of such failure to provide notification in a timely fashion.