Common use of Certain Tax Claims Clause in Contracts

Certain Tax Claims. (a) Any issue raised by any Taxing Authority in any tax inquiry, audit, examination, investigation, dispute, litigation or other proceeding relating to a Common Consolidated Tax Return that would result in tax liability to the Indemnitor is defined as a "Claim." Except as provided in Sections 3.01(b), 5.03(d) and the second sentence of Section 5.02 hereof, and notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim and not to settle any Claim without the prior written consent of the Indemnitor, provided that (i) the Controlling Party shall provide notice to Indemnitor pursuant to Section 5.02 hereof of any Claim, (ii) within thirty days after notice by the Controlling Party to the Indemnitor of a Claim is received by the Indemnitor, the Indemnitor shall (1) request in writing that such Claim be contested, and (2) provide an opinion of independent tax counsel, selected by the Indemnitor and reasonably acceptable to the Controlling Party, to the effect that it is more likely than not that a Final Determination shall be substantially consistent with the Indemnitor's position relating to such Claim, (iii) the Indemnitor agrees to pay on demand all out-of-pocket costs, losses and expenses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim, except for a Claim where the expenses are shared pursuant to Section 2.04(a) hereof, and (iv) the Controlling Party, after reasonable consultation with the Indemnitor, shall determine in its sole discretion the nature of all actions to be taken to contest such Claim, including (1) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (2) whether any such Claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereof, and (3) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor is not participating, the Controlling Party shall keep the Indemnitor and, upon request by the Indemnitor, its counsel, informed as to the progress of the contest.

Certain Tax Claims. (a) Any issue raised by any Taxing a Governmental Authority in any tax inquiry, audit, examination, investigation, dispute, litigation or other proceeding relating Tax Contest with respect to a Common Consolidated Tax Return which the Indemnitor is not the Controlling Party that would could result in tax liability to the Indemnitor under this Agreement is defined as a "Claim (a “Claim." ”). The Controlling Party shall provide notice to Indemnitor pursuant to Section 5.02 of any such Claim. Except as provided in Sections 3.01(b), Section 5.03(d) and the second sentence of Section 5.02 hereof, and notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim and not to settle any Claim without the prior written consent of the Indemnitor, provided that if within thirty (i30) days after the Controlling Party shall provide notice to Indemnitor pursuant to described in Section 5.02 hereof of any Claim, (ii) within thirty days after notice by the Controlling Party to the Indemnitor of a Claim is received by the Indemnitor, (i) the Indemnitor shall (1) request requests in writing that such Claim be contested, contested and (2) provide an opinion of independent tax counsel, selected by the Indemnitor and reasonably acceptable to the Controlling Party, to the effect that it is more likely than not that a Final Determination shall be substantially consistent with the Indemnitor's position relating to such Claim, (iiiii) the Indemnitor agrees in writing to pay on demand all out-of-pocket costs, losses and expenses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim, except for a Claim where the expenses are shared pursuant to Section 2.04(a) hereof, and (iv) the . The Controlling Party, after reasonable consultation with the Indemnitor, shall determine in its the Controlling Party’s sole discretion the nature of all actions to be taken to contest such Claim, including including, without limitation, (1x) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (2y) whether any such Claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereof, and (3z) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor is does not participatingParticipate in the Tax Contest, the Controlling Party shall keep the Indemnitor (and, upon request by the Indemnitor, its counsel, ) informed as to the progress of the contestTax Contest with respect to any Claim.

Certain Tax Claims. (a) Any issue raised by any Taxing Authority the relevant Governmental Entity in any tax Tax inquiry, audit, redetermination, examination, investigation, dispute, litigation or other proceeding relating to a Common Consolidated Tax Return that would result in tax liability to the Indemnitor under this Agreement is defined as a "Claim (a “Claim." Except as provided in Sections 3.01(b”), 5.03(d) and the second sentence of Section 5.02 hereof, and notwithstanding . Notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim for which the Controlling Party is not reasonably likely to have any liability at the direction of the Indemnitor and not to settle any Claim without the prior written consent of the Indemnitor, provided that (i) the Controlling Party shall provide notice to Indemnitor pursuant to Section 5.02 hereof of any Claim, (ii) within thirty 30 days after notice by the Controlling Party to the Indemnitor of a Claim is received by the Indemnitor, the Indemnitor shall (1) request in writing that such Claim be contested, contested and (2) provide an opinion of independent tax counsel, selected by the Indemnitor and reasonably acceptable to the Controlling Party, to the effect that it is more likely than not that a Final Determination shall be substantially consistent with the Indemnitor's position relating to such Claim, (iiiii) the Indemnitor agrees shall agree to pay (and shall pay) on demand all reasonable out-of-pocket costs, losses and expenses Indemnifiable Losses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim. The Indemnitor, except for a Claim where the expenses are shared pursuant at its option, may select as lead counsel of such defense any legal counsel reasonably satisfactory to Section 2.04(a) hereof, and (iv) the Controlling Party. In contesting any Claim in accordance with the foregoing, the Indemnitor shall, after reasonable consultation with the IndemnitorControlling Party, shall determine in its sole discretion the nature of all actions to be taken to contest such Claim, including (1x) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (2y) whether any such Claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereofthereof (provided that the Indemnitor will provide funds on an interest-free basis for payment in the case of the latter course consistent with Section 3.04(b) below), and (3z) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor is not participating, the Controlling Party shall keep the Indemnitor (and, upon request by the Indemnitor, its counsel, ) informed as to the progress of the contest. In the case of a Claim for which both the Controlling Party and the Indemnitor may bear liability, each party shall bear its own expenses in contesting such a Claim, and the parties agree to use reasonable best efforts to separate the issues for resolution, to the extent possible. To the extent the issues cannot be separated, the parties shall, in good faith, use reasonable best efforts to jointly control the contesting of such a Claim (including the selection of lead counsel), although the party with the greater liability at stake shall ultimately have control over the settlement or other disposition of such Claim (including decisions described in clauses (x), (y) and (z) of the fourth sentence of this Section 3.03) after affording the other party the right to participate fully in contesting the Claim (including without limitation the right to attend material conference calls and meetings and to have reasonable comments incorporated in any written submission or response submitted to the relevant Tax authority to the extent such items bear on the Tax for which the other party could be liable).

Certain Tax Claims. (a) Any issue raised by any the relevant Taxing Authority authority in any tax Tax inquiry, audit, redetermination, examination, investigation, dispute, litigation or other proceeding relating to a Common Consolidated Tax Return that would result in tax liability to the Indemnitor under this Agreement is defined as a "Claim (a “Claim." Except as provided in Sections 3.01(b”), 5.03(d) and the second sentence of Section 5.02 hereof, and notwithstanding . Notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim for which the Controlling Party is not reasonably likely to have any liability at the direction of the Indemnitor and not to settle any Claim without the prior written consent of the Indemnitor, provided that (i) the Controlling Party shall provide notice to Indemnitor pursuant to Section 5.02 hereof of any Claim, (ii) within thirty 30 days after notice by the Controlling Party to the Indemnitor of a Claim is received by the Indemnitor, the Indemnitor shall (1) request in writing that such Claim be contested, and (2) provide an opinion of independent tax counsel, selected by the Indemnitor and reasonably acceptable to the Controlling Party, to the effect that it is more likely than not that a Final Determination shall be substantially consistent with the Indemnitor's position relating to such Claimcontested and, (iiiii) the Indemnitor agrees shall agree to pay (and shall pay) on demand all reasonable out-of-pocket costs, losses and expenses Indemnifiable Losses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim. The Indemnitor, except for a Claim where the expenses are shared pursuant at its option, may select as lead counsel of such defense any legal counsel reasonably satisfactory to Section 2.04(a) hereof, and (iv) the Controlling Party. In contesting any Claim in accordance with the foregoing, the Indemnitor shall, after reasonable consultation with the IndemnitorControlling Party, shall determine in its sole discretion the nature of all actions to be taken to contest such Claim, including (1x) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (2y) whether any such Claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereofthereof (provided that the Indemnitor will provide funds on an interest-free basis for payment in the case of the latter course consistent with Section 3.04(b) below), and (3z) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor is not participating, the Controlling Party shall keep the Indemnitor (and, upon request by the Indemnitor, its counsel, ) informed as to the progress of the contest. In the case of Restructuring Taxes for which liability is shared under Section 2.04(a), each party shall pay a portion (based on each party’s share of such Restructuring Taxes) of the reasonable expenses (including legal and accounting fees) incurred in connection with contesting such Restructuring Tax dispute. In the case of a Claim for which both the Controlling Party and the Indemnitor may bear liability, each party shall bear its own expenses in contesting such a Claim, and the parties agree to use reasonable best efforts to separate the issues for resolution, to the extent possible. To the extent the issues cannot be separated, the parties shall, in good faith, use reasonable best efforts to jointly control the contesting of such a Claim (including the selection of lead counsel), although the party with the greater liability at stake shall ultimately have control over the settlement or other disposition of such Claim after affording the other party the right to participate fully in contesting the Claim (including without limitation the right to attend material conference calls and meetings and to have reasonable comments incorporated in any written submission or response submitted to the relevant Tax authority to the extent such items bear on the Tax for which the other party could be liable).

Certain Tax Claims. (a) Any issue issues (other than issues relating to Restructuring Taxes for which liability is shared under Section 3.04(a), which shall be excluded from the provisions of this Section 5.03) raised by any the relevant Taxing Authority authority in any tax Tax inquiry, audit, examination, investigation, dispute, litigation or other proceeding relating to a Common Consolidated Tax Return that would result in tax liability to the Indemnitor is under this Agreement that in the aggregate would equal or exceed $250,000 with respect to any taxable year are defined as a Claim (a "Claim." CLAIM"). Except as provided in Sections 3.01(b), Section 5.03(d) and the second sentence of Section 5.02 hereof, and notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim and not to settle any Claim without the prior written consent of the Indemnitor, provided that (i) the Controlling Party shall provide notice to Indemnitor pursuant to Section 5.02 hereof of any Claim, (ii) within [thirty (30)] days after such notice by the Controlling Party to the Indemnitor of a Claim is received by the Indemnitor, the Indemnitor shall (1) request in writing that such Claim be contested, contested and (2) the Indemnitor shall provide an opinion of independent tax counsel, selected by the Indemnitor and reasonably acceptable to the Controlling Party, to the effect that it is more likely than not that a Final Determination shall will be substantially consistent with the Indemnitor's position relating to such Claim, (iii) the Indemnitor agrees shall agree to pay (and shall pay) on demand all out-of-pocket costs, losses and expenses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim, except for a Claim where the expenses are shared pursuant to Section 2.04(a) hereof, and (iv) the Controlling Party, after reasonable consultation with the Indemnitor, shall determine in its the Controlling Party's sole discretion the nature of all actions to be taken to contest such Claim, including (1x) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (2y) whether any such Claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereof, and (3z) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor is not participating, the Controlling Party shall keep the Indemnitor (and, upon request by the Indemnitor, its counsel, ) informed as to the progress of the contest.

Certain Tax Claims. (a) Any issue raised by PubCo will notify the Stockholders’ Representative in writing of the commencement of any Taxing Authority in any tax inquirycontest, audit, examination, investigation, dispute, litigation audit or other proceeding relating (a “Tax Claim”) in respect of Pre-Closing Taxes within ten (10) days of receiving written notice of such commencement. If the Tax Claim relates to a Common Consolidated Pre-Closing Taxes that are reasonably expected to reduce Tax Return that would result in tax liability to the Indemnitor is defined as a "Claim." Except as provided in Sections 3.01(b), 5.03(d) and the second sentence of Section 5.02 hereof, and notwithstanding any other provision of this Agreement that may be construed to the contrary, the Controlling Party agrees to contest any Claim and not to settle any Claim without the prior written consent of the Indemnitor, provided that (i) the Controlling Party shall provide notice to Indemnitor Benefit Payments pursuant to Section 5.02 hereof 3.03, then the Stockholders’ Representative may, at the expense of any Claimthe Sellers, (ii) within thirty days after notice by participate in the Controlling Party Tax Claim to the Indemnitor of a Claim is received by the Indemnitor, the Indemnitor shall (1) request in writing that such Claim be contested, and (2) provide an opinion of independent tax counsel, selected by the Indemnitor and reasonably acceptable to the Controlling Party, to the effect that extent it is more likely than not that a Final Determination shall be substantially consistent with the Indemnitor's position relating relates to such Claimmaterial Pre-Closing Taxes and PubCo shall not be entitled to settle, (iii) either administratively or after the Indemnitor agrees commencement of litigation, any such Tax Claim without Stockholders’ Representative’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that, if the majority of the exposure in respect of such Tax Claim relates to pay on demand all outPre-of-pocket costs, losses and expenses (including, but not limited to, legal and accounting fees) paid or incurred by the Controlling Party in connection with contesting such Claim, except for a Claim where the expenses Closing Taxes that are shared reasonably expected to reduce Tax Benefit Payments pursuant to Section 2.04(a) hereof3.03 then upon notice to PubCo, Stockholders’ Representative may assume control of the defense of such Tax Claim, whether such Tax Claim commenced before or commences after the Merger Closing Date and, in such case, PubCo shall be permitted, at its expense, to be present at, and (iv) participate in, the Controlling Party, after reasonable consultation with the Indemnitor, shall determine in its sole discretion the nature defense of all actions to be taken to contest such Claim, including (1) whether any action to contest such Claim shall initially be by way of judicial or administrative proceeding, or both, (2) whether any such Tax Claim and the Stockholders’ Representative shall not be entitled to settle, either administratively or after the commencement of litigation, any such Tax Claim without PubCo’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided further, that any dispute with respect to whether the withholding of consent by either party is reasonable shall be contested by resisting payment thereof or by paying the same and seeking a refund thereof, and (3) the court or other judicial body before which judicial action, if any, shall be commenced. To the extent the Indemnitor is not participating, the Controlling Party shall keep the Indemnitor and, upon request resolved by the Indemnitor, its counsel, informed as Expert pursuant to the progress of the contestReconciliation Procedures.