Common use of Audits and Other Proceedings Clause in Contracts

Audits and Other Proceedings. Notwithstanding anything to the contrary in this Agreement, Section 7.7 shall not govern the resolution of any claim by a Governmental Authority in respect of Taxes of the Company or any of its Subsidiaries for which indemnity is provided under this Agreement, and the following procedures shall govern the resolution of any claim by a Governmental Authority in respect of Taxes relating to the Company or any of its Subsidiaries for a Pre-Closing Tax Period (as defined below in Section 7.2(c)(i)) which may give rise to a liability for which the Emdeon Indemnified Persons may have an indemnification claim under this Agreement (a “Pre-Closing Tax Claim”): (a) If the Emdeon Entities or the Surviving Entity, as the case may be, receives written notice of a Pre-Closing Tax Claim, then the Emdeon Entities or the Surviving Entity, as the case may be, will give the Members’ Representative prompt written notice thereof (provided that the parties acknowledge, for the avoidance of doubt, that the Members’ Representative is not obligated to indemnify any Person hereunder and references to liability of the Indemnifying Person shall be references to claims against the Escrowed Consideration or under the Indemnification Agreements); provided, however, that the failure to notify the Members’ Representative will not relieve any liability owed to the Emdeon Entities, except to the extent that the Members’ Representative demonstrates that the defense of such Third-Party Claim is prejudiced by the Emdeon Entities’ failure to give such notice. (b) The Members’ Representative will have the right to defend against the Pre-Closing Tax Claim with counsel of its choice reasonably satisfactory to the Emdeon Entities so long as (i) the Members’ Representative notifies the Emdeon Entities in writing within fifteen (15) days after notice of the Pre-Closing Tax Claim that the Members’ Representative will undertake the defense of the Pre-Closing Tax Claim, (ii) the Pre-Closing Tax Claim does not involve Taxes for a period (or portion thereof) other than a Pre-Closing Period and (iii) the Members’ Representative conducts the defense of the Pre-Closing Tax Claim actively and diligently. The Emdeon Indemnified Persons may retain separate co-counsel at their sole cost and expense and participate in the defense of the Pre-Closing Tax Claim. The Emdeon Entities or the Surviving Entity, as the case may be, shall execute all such waivers, powers of attorney and other documents necessary or appropriate for Members’ Representative’s counsel of choice to participate in the defense of a Pre-Closing Tax Claim. The Emdeon Entities or the Surviving Entity, as the case may be, shall execute any compromise or settlement of a Pre-Closing Tax Claim required by Members’ Representative. (c) Notwithstanding anything herein to the contrary, the Members’ Representative will not consent to the entry of any judgment or enter into any compromise or settlement with respect to a Pre-Closing Tax Claim that may have the effect of increasing Taxes in any Tax period that ends after the Closing Date without the prior written consent of the Surviving Entity, which shall not be unreasonably conditioned, delayed or withheld. (d) If the Members’ Representative does not deliver the notice contemplated by clause (i) of Section 6.8(b) within fifteen (15) days after the notice of the Pre-Closing Tax Claim has been given or if such notice is given on a timely basis, but the Members’ Representative is no longer conducting the defense of such Pre-Closing Tax Claim actively and diligently, the Emdeon Entities or the Surviving Entity, as the case may be, may defend and consent to the entry of any judgment, or enter into any compromise or settlement with respect to the Pre-Closing Tax Claim in any manner they may deem appropriate (and the Emdeon Entities or the Surviving Entity, as the case may be, need not consult with, or obtain any consent from, the Members’ Representative in connection therewith), and the Members’ Representative shall no longer have the right to defend such Pre-Closing Tax Claim and shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to such Pre-Closing Tax Claim. In the event the Emdeon Entities or the Surviving Entity, as the case may be, conducts the defense of the Pre-Closing Tax Claim pursuant to this Section 6.8(d), the Emdeon Entities or the Surviving Entity, as the case may be, will be reimbursed promptly and periodically for the costs of defending the Pre-Closing Tax Claim (including reasonable attorneys’ fees and expenses) and will be indemnified for any and all Damages that the Emdeon Indemnified Persons may incur or suffer arising from or in connection with the Pre-Closing Tax Claim to the fullest extent provided in this Agreement. (e) If the Pre-Closing Tax Claim involves Taxes for a Straddle Period, the Emdeon Entities or the Surviving Entity may defend the claim; provided, however, the Emdeon Entities or the Surviving Entity, as the case may be (i) shall allow the Members’ Representative (and its counsel) to participate in the defense of the claim to the extent the claim relates to Taxes for a Pre-Closing Tax Period, and (ii) shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to such Pre-Closing Tax Claim without the prior written consent of the Members’ Representative, which shall not be unreasonably conditioned, delayed or withheld.

Audits and Other Proceedings. Notwithstanding anything to the contrary in this Agreement, Section 7.7 shall not govern the resolution of any claim by a Governmental Authority in respect of Taxes of the Company or any of its Subsidiaries for which indemnity is provided under this Agreement, and the following procedures shall govern the resolution of any claim by a Governmental Authority in respect of Taxes relating to the Company or any of its Subsidiaries for a Pre-Closing Tax Period (as defined below in Section 7.2(c)(i)) which may give rise to a liability for which the Emdeon Indemnified Persons may have an indemnification claim under this Agreement (a “Pre-Closing Tax Claim”): (a) If Vesta shall promptly notify Affirmative in writing upon receipt by any of the Emdeon Vesta Tax Entities or the Surviving Entity, as the case may be, receives written of notice of a Pre-Closing any pending or threatened audit, assessment or judicial or administrative proceeding involving taxes with respect to the Vesta Tax Claim, then the Emdeon Entities or the Surviving Entity, as the case may be, will give the Members’ Representative prompt written notice thereof (provided that the parties acknowledge, Group for the avoidance of doubt, that the Members’ Representative is not obligated which Affirmative would be required to indemnify any Person hereunder and references the Vesta Tax Entities pursuant to liability of the Indemnifying Person shall be references to claims against the Escrowed Consideration or under the Indemnification Agreements)Section 5.2(b) above; provided, however, that the failure of Vesta to notify the Members’ Representative will give such notice shall not relieve any liability owed to the Emdeon EntitiesAffirmative of its indemnification obligations under Section 5.2(b), except to the extent that the Members’ Representative demonstrates that the defense of such Third-Party Claim Affirmative is materially prejudiced by the Emdeon Entities’ failure to give such noticethereby. (b) The Members’ Representative will have Affirmative shall promptly notify Vesta in writing upon receipt by any of the right Affirmative Tax Entities of notice of any pending or threatened audit, assessment or judicial or administrative proceeding involving taxes with respect to defend against the Pre-Closing Affirmative Tax Claim with counsel Entities for which Vesta would be required to indemnify the Affirmative Tax Entities pursuant to Section 5.2(a) above; provided, however, that the failure of Affirmative to give such notice shall not relieve Vesta of its choice reasonably satisfactory indemnification obligations under Section 5.2(a), except to the Emdeon Entities so long as (i) the Members’ Representative notifies the Emdeon Entities in writing within fifteen (15) days after notice of the Pre-Closing Tax Claim that the Members’ Representative will undertake the defense of the Pre-Closing Tax Claim, (ii) the Pre-Closing Tax Claim does not involve Taxes for a period (or portion thereof) other than a Pre-Closing Period and (iii) the Members’ Representative conducts the defense of the Pre-Closing Tax Claim actively and diligently. The Emdeon Indemnified Persons may retain separate co-counsel at their sole cost and expense and participate in the defense of the Pre-Closing Tax Claim. The Emdeon Entities or the Surviving Entity, as the case may be, shall execute all such waivers, powers of attorney and other documents necessary or appropriate for Members’ Representative’s counsel of choice to participate in the defense of a Pre-Closing Tax Claim. The Emdeon Entities or the Surviving Entity, as the case may be, shall execute any compromise or settlement of a Pre-Closing Tax Claim required by Members’ Representativeextent Vesta is materially prejudiced thereby. (c) Notwithstanding anything herein Affirmative shall have the right to participate in (at its own expense), but not control, a tax proceeding to the contrary, extent it relates to pre-Separation Date taxes which may be the Members’ Representative will subject of indemnification by Affirmative pursuant to Section 5.2(b) and to employ counsel of its choice at its expense. Vesta shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to a Pre-Closing Tax Claim that may have the effect of increasing Taxes in settle any Tax period that ends after the Closing Date such tax proceeding without the prior written consent of the Surviving EntityAffirmative, which consent shall not be unreasonably conditionedwithheld. If Vesta shall not assume the defense of such tax proceeding, delayed or withheldthen Affirmative may assume sole control over such tax proceeding, at its own expense, without relieving Affirmative of its indemnification obligations under Section 5.2(b). (d) If the Members’ Representative does not deliver the notice contemplated by clause (i) of Section 6.8(b) within fifteen (15) days after the notice of the Pre-Closing Tax Claim has been given or if such notice is given on a timely basis, but the Members’ Representative is no longer conducting the defense of such Pre-Closing Tax Claim actively and diligently, the Emdeon Entities or the Surviving Entity, as the case may be, may defend and consent to the entry of any judgment, or enter into any compromise or settlement with respect to the Pre-Closing Tax Claim in any manner they may deem appropriate (and the Emdeon Entities or the Surviving Entity, as the case may be, need not consult with, or obtain any consent from, the Members’ Representative in connection therewith), and the Members’ Representative Vesta shall no longer have the right to defend such Pre-Closing Tax Claim and shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to such Pre-Closing Tax Claim. In the event the Emdeon Entities or the Surviving Entitycontrol, as the case may beat its own expense, conducts the defense of the Pre-Closing Tax Claim pursuant to this Section 6.8(d), the Emdeon Entities or the Surviving Entity, as the case may be, will be reimbursed promptly and periodically for the costs of defending the Pre-Closing Tax Claim (including reasonable attorneys’ fees and expenses) and will be indemnified for any and all Damages that the Emdeon Indemnified Persons may incur or suffer arising from or in connection with the Pre-Closing Tax Claim to the fullest extent provided in this Agreement. (e) If the Pre-Closing Tax Claim involves Taxes for a Straddle Period, the Emdeon Entities or the Surviving Entity may defend the claim; provided, however, the Emdeon Entities or the Surviving Entity, as the case may be (i) shall allow the Members’ Representative (and its counsel) to participate in the defense of the claim tax proceeding to the extent the claim it relates to Taxes for a Prepre-Closing Tax Period, Separation Date taxes which may be the subject of indemnification by Vesta pursuant to Section 5.2(a) and (ii) shall not consent to the entry employ counsel of any judgment or enter into any compromise or settlement with respect to such Pre-Closing Tax Claim without the prior written consent of the Members’ Representative, which shall not be unreasonably conditioned, delayed or withheldits choice at its expense.

Audits and Other Proceedings. Notwithstanding anything to Following the contrary in this AgreementClosing Date, Section 7.7 the Seller shall, and shall not govern be furnished by the resolution of any claim by a Governmental Authority in respect of Taxes of Purchaser, the Company or any of its Subsidiaries for which indemnity is provided under this Agreement, and the following procedures shall govern the resolution of any claim by a Governmental Authority in respect of Taxes relating to the Company or any of its Subsidiaries for a Pre-Closing Tax Period (as defined below in Section 7.2(c)(i)) which may give rise to a liability for which the Emdeon Indemnified Persons may have an indemnification claim under this Agreement (a “Pre-Closing Tax Claim”): (a) If the Emdeon Entities or the Surviving EntitySubsidiary, as the case may be, receives written notice with powers of a Pre-Closing attorney, or any other document or authorization necessary or appropriate to enable it to, control the conduct of all stages of any audit or other administrative or judicial proceeding with respect to Taxes for which the Seller is liable pursuant to Section 6.2(a) or Section 6.7 and the Purchaser shall control the conduct of all other audits or administrative or judicial proceedings with respect to the Tax Claim, then the Emdeon Entities or the Surviving Entity, as the case may be, will give the Members’ Representative prompt written notice thereof (provided that the parties acknowledge, for the avoidance of doubt, that the Members’ Representative is not obligated to indemnify any Person hereunder and references to liability of the Indemnifying Person shall be references Company and the Subsidiaries for any tax period or portion thereof. Subject to claims against the Escrowed Consideration or under the Indemnification Agreements); provided, however, that the failure to notify the Members’ Representative will not relieve any liability owed to the Emdeon Entities, except to the extent that the Members’ Representative demonstrates that the defense of such Third-Party Claim is prejudiced by the Emdeon Entities’ failure to give such notice.control: (b) The Members’ Representative will have the right to defend against the Pre-Closing Tax Claim with counsel of its choice reasonably satisfactory to the Emdeon Entities so long as (i) With respect to any audit or other proceeding that it controls, the Members’ Representative notifies Seller (x) shall give prompt notice to the Emdeon Entities Purchaser of any Tax adjustment proposed in writing within fifteen (15) days after notice pursuant to any audit or other proceeding controlled by the Seller with respect to the assets or activities of any of the Pre-Closing Tax Claim that Company or the Members’ Representative will undertake the defense of the Pre-Closing Tax ClaimSubsidiaries, (iiy) upon the Pre-Closing Tax Claim does not involve Taxes for a period (Purchaser's reasonable request shall discuss with the Purchaser and the Purchaser's tax advisors the position that it intends to take regarding any issue concerning such assets or portion thereof) other than a Pre-Closing Period activities, and (iiiz) the Members’ Representative conducts the defense shall not, and shall not permit any of the Pre-Closing Tax Claim actively and diligently. The Emdeon Indemnified Persons may retain separate co-counsel at their sole cost and expense and participate in the defense of the Pre-Closing Tax Claim. The Emdeon Entities or the Surviving Entityits Affiliates to, as the case may be, shall execute all such waivers, powers of attorney and other documents necessary or appropriate for Members’ Representative’s counsel of choice to participate in the defense of a Pre-Closing Tax Claim. The Emdeon Entities or the Surviving Entity, as the case may be, shall execute any compromise or settlement of a Pre-Closing Tax Claim required by Members’ Representative. (c) Notwithstanding anything herein to the contrary, the Members’ Representative will not consent to the entry of any judgment or enter into any settlement or agreement in compromise of any proposed adjustment which purports to bind the Purchaser, the Company or settlement any Subsidiary with respect to a Pre-Closing Tax Claim that may have the effect of increasing Taxes in any Tax period that ends ending after the Closing Date without the prior express written consent of the Surviving EntityPurchaser, which consent shall not be unreasonably withheld, and (ii) The Purchaser (x) shall give prompt notice to the Seller of the commencement of any audit or other proceeding which could reduce the amount of any net operating losses, net capital losses, tax credits or other federal, state or local tax benefits (or any carryforwards of such amounts) available to the Company or any Subsidiary as of the Closing Date or could give rise to a claim for payment against the Seller under this Agreement; (y) with respect to any audit or proceeding controlled by the Purchaser, shall afford the Seller and its tax advisors a reasonable opportunity to participate in the conduct of any administrative or judicial proceeding regarding a proposed adjustment described in clause (x) above including, without limitation, the right to participate in conferences with taxing authorities and submit pertinent material in support of the Seller's position, and (z) shall not, and shall not permit any of its Affiliates to, accept any proposed adjustment or enter into any settlement or agreement in compromise which would result in the reduction of any tax benefit or carryforward described in Clause (x) above or in a claim for indemnification against the Seller pursuant to this agreement without the Seller's express written consent which shall not be unreasonably conditioned, delayed or withheld. (d) If the Members’ Representative does not deliver the notice contemplated by clause (i) of Section 6.8(b) within fifteen (15) days after the notice of the Pre-Closing Tax Claim has been given or if such notice is given on a timely basis, but the Members’ Representative is no longer conducting the defense of such Pre-Closing Tax Claim actively and diligently, the Emdeon Entities or the Surviving Entity, as the case may be, may defend and consent to the entry of any judgment, or enter into any compromise or settlement with respect to the Pre-Closing Tax Claim in any manner they may deem appropriate (and the Emdeon Entities or the Surviving Entity, as the case may be, need not consult with, or obtain any consent from, the Members’ Representative in connection therewith), and the Members’ Representative shall no longer have the right to defend such Pre-Closing Tax Claim and shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to such Pre-Closing Tax Claim. In the event the Emdeon Entities or the Surviving Entity, as the case may be, conducts the defense of the Pre-Closing Tax Claim pursuant to this Section 6.8(d), the Emdeon Entities or the Surviving Entity, as the case may be, will be reimbursed promptly and periodically for the costs of defending the Pre-Closing Tax Claim (including reasonable attorneys’ fees and expenses) and will be indemnified for any and all Damages that the Emdeon Indemnified Persons may incur or suffer arising from or in connection with the Pre-Closing Tax Claim to the fullest extent provided in this Agreement. (e) If the Pre-Closing Tax Claim involves Taxes for a Straddle Period, the Emdeon Entities or the Surviving Entity may defend the claim; provided, however, the Emdeon Entities or the Surviving Entity, as the case may be (i) shall allow the Members’ Representative (and its counsel) to participate in the defense of the claim to the extent the claim relates to Taxes for a Pre-Closing Tax Period, and (ii) shall not consent to the entry of any judgment or enter into any compromise or settlement with respect to such Pre-Closing Tax Claim without the prior written consent of the Members’ Representative, which shall not be unreasonably conditioned, delayed or withheld.